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WRITS OF HABEAS CORPUS AND husband, lawyer Potenciano Ilusorio and

AMPARO enforce consortium as the wife.

[G.R. No. 139789. May 12, 2000] On the other hand, the petition of Potenciano
Ilusorio[9] is to annul that portion of the
ERLINDA K. ILUSORIO, petitioner, vs. decision of the Court of Appeals giving Erlinda
ERLINDA I. BILDNER and SYLVIA K. K. Ilusorio visitation rights to her husband and
ILUSORIO, JOHN DOE and JANE DOE, to enjoin Erlinda and the Court of Appeals from
respondents. Mesm enforcing the visitation rights.

[G.R. No. 139808. May 12, 2000] The undisputed facts are as follows: Scslx

POTENCIANO ILUSORIO, MA. ERLINDA I. Erlinda Kalaw Ilusorio is the wife of lawyer
BILDNER, and SYLVIA ILUSORIO, Potenciano Ilusorio.
petitioners, vs. COURT OF APPEALS and
ERLINDA K. ILUSORIO, respondents. Potenciano Ilusorio is about 86 years of age
possessed of extensive property valued at
DECISION millions of pesos. For many years, lawyer
Potenciano Ilusorio was Chairman of the
PARDO, J.: Board and President of Baguio Country Club.

May a wife secure a writ of habeas corpus to On July 11, 1942, Erlinda Kalaw and
compel her husband to live with her in conjugal Potenciano Ilusorio contracted matrimony and
bliss? The answer is no. Marital rights lived together for a period of thirty (30) years.
including coverture and living in conjugal In 1972, they separated from bed and board
dwelling may not be enforced by the extra- for undisclosed reasons. Potenciano lived at
ordinary writ of habeas corpus. Urdaneta Condominium, Ayala Ave., Makati
City when he was in Manila and at Ilusorio
A writ of habeas corpus extends to all cases of Penthouse, Baguio Country Club when he was
illegal confinement or detention,[1] or by which in Baguio City. On the other hand, Erlinda lived
the rightful custody of a person is withheld in Antipolo City.
from the one entitled thereto.[2] Slx
Out of their marriage, the spouses had six (6)
"Habeas corpus is a writ directed to the person children, namely: Ramon Ilusorio (age 55);
detaining another, commanding him to Erlinda Ilusorio Bildner (age 52); Maximo (age
produce the body of the prisoner at a 50); Sylvia (age 49); Marietta (age 48); and
designated time and place, with the day and Shereen (age 39).
cause of his capture and detention, to do,
submit to, and receive whatsoever the court or On December 30, 1997, upon Potencianos
judge awarding the writ shall consider in that arrival from the United States, he stayed with
behalf."[3] Erlinda for about five (5) months in Antipolo
City. The children, Sylvia and Erlinda (Lin),
It is a high prerogative, common-law writ, of alleged that during this time, their mother gave
ancient origin, the great object of which is the Potenciano an overdose of 200 mg instead of
liberation of those who may be imprisoned 100 mg Zoloft, an antidepressant drug
without sufficient cause.[4] It is issued when prescribed by his doctor in New York, U.S.A.
one is deprived of liberty or is wrongfully As a consequence, Potencianos health
prevented from exercising legal custody over deteriorated.
another person.[5]
On February 25, 1998, Erlinda filed with the
The petition of Erlinda K. Ilusorio[6] is to Regional Trial Court, Antipolo City a
reverse the decision[7] of the Court of Appeals petition[10] for guardianship over the person
and its resolution[8] dismissing the application and property of Potenciano Ilusorio due to the
for habeas corpus to have the custody of her latters advanced age, frail health, poor
eyesight and impaired judgment.

unnecessary, and where a deprivation of

On May 31, 1998, after attending a corporate freedom originally valid has later become
meeting in Baguio City, Potenciano Ilusorio did arbitrary.[14] It is devised as a speedy and
not return to Antipolo City and instead lived at effectual remedy to relieve persons from
Cleveland Condominium, Makati. Slxsc unlawful restraint, as the best and only
sufficient defense of personal freedom.[15]
On March 11, 1999, Erlinda filed with the Court Jksm
of Appeals a petition for habeas corpus to
have the custody of lawyer Potenciano The essential object and purpose of the writ of
Ilusorio. She alleged that respondents[11] habeas corpus is to inquire into all manner of
refused petitioners demands to see and visit involuntary restraint, and to relieve a person
her husband and prohibited Potenciano from therefrom if such restraint is illegal.[16]
returning to Antipolo City.
To justify the grant of the petition, the restraint
After due hearing, on April 5, 1999, the Court of liberty must be an illegal and involuntary
of Appeals rendered decision the dispositive deprivation of freedom of action.[17] The
portion of which reads: illegal restraint of liberty must be actual and
effective, not merely nominal or moral.[18]
"WHEREFORE, in the light of the foregoing
disquisitions, judgment is hereby rendered: The evidence shows that there was no actual
and effective detention or deprivation of lawyer
"(1) Ordering, for humanitarian consideration Potenciano Ilusorios liberty that would justify
and upon petitioners manifestation, the issuance of the writ. The fact that lawyer
respondents Erlinda K. Ilusorio Bildner and Potenciano Ilusorio is about 86 years of age,
Sylvia Ilusorio-Yap, the administrator of or under medication does not necessarily
Cleveland Condominium or anywhere in its render him mentally incapacitated. Soundness
place, his guards and Potenciano Ilusorios of mind does not hinge on age or medical
staff especially Ms. Aurora Montemayor to condition but on the capacity of the individual
allow visitation rights to Potenciano Ilusorios to discern his actions.
wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors After due hearing, the Court of Appeals
thereof, under penalty of contempt in case of concluded that there was no unlawful restraint
violation of refusal thereof; xxx on his liberty.

"(2) ORDERING that the writ of habeas corpus The Court of Appeals also observed that
previously issued be recalled and the herein lawyer Potenciano Ilusorio did not request the
petition for habeas corpus be DENIED DUE administrator of the Cleveland Condominium
COURSE, as it is hereby DISMISSED for lack not to allow his wife and other children from
of unlawful restraint or detention of the subject seeing or visiting him. He made it clear that he
of the petition. did not object to seeing them.

"SO ORDERED."[12] As to lawyer Potenciano Ilusorios mental

state, the Court of Appeals observed that he
Hence, the two petitions, which were was of sound and alert mind, having answered
consolidated and are herein jointly decided. all the relevant questions to the satisfaction of
the court.
As heretofore stated, a writ of habeas corpus
extends to all cases of illegal confinement or Being of sound mind, he is thus possessed
detention,[13] or by which the rightful custody with the capacity to make choices. In this case,
of a person is withheld from the one entitled the crucial choices revolve on his residence
thereto. It is available where a person and the people he opts to see or live with. The
continues to be unlawfully denied of one or choices he made may not appeal to some of
more of his constitutional freedoms, where his family members but these are choices
there is denial of due process, where the which exclusively belong to Potenciano. He
restraints are not merely involuntary but are made it clear before the Court of Appeals that

he was not prevented from leaving his house

or seeing people. With that declaration, and
absent any true restraint on his liberty, we
have no reason to reverse the findings of the
Court of Appeals.

With his full mental capacity coupled with the

right of choice, Potenciano Ilusorio may not be
the subject of visitation rights against his free
choice. Otherwise, we will deprive him of his
right to privacy. Needless to say, this will run
against his fundamental constitutional right. Es

The Court of Appeals exceeded its authority

when it awarded visitation rights in a petition
for habeas corpus where Erlinda never even
prayed for such right. The ruling is not
consistent with the finding of subjects sanity.

When the court ordered the grant of visitation

rights, it also emphasized that the same shall
be enforced under penalty of contempt in case
of violation or refusal to comply. Such
assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the

case did not involve the right of a parent to visit
a minor child but the right of a wife to visit a
husband. In case the husband refuses to see
his wife for private reasons, he is at liberty to
do so without threat of any penalty attached to
the exercise of his right.

No court is empowered as a judicial authority

to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion
of a writ of habeas corpus carried out by
sheriffs or by any other mesne process. That
is a matter beyond judicial authority and is best
left to the man and womans free choice.

WHEREFORE, in G. R. No. 139789, the Court

DISMISSES the petition for lack of merit. No

In G. R. No. 139808, the Court GRANTS the

petition and nullifies the decision of the Court
of Appeals insofar as it gives visitation rights
to respondent Erlinda K. Ilusorio. No costs.


her. Aileen was then aged 12 years and ten

[G.R. No. 158802. November 17, 2004] months. She was unable to shout for help
because petitioner covered her mouth with a
IN RE: THE WRIT OF HABEAS CORPUS pillow and threatened to kill her. Aileen could
FOR REYNALDO DE VILLA (detained at the not do anything but cry. Petitioner succeeded
New Bilibid Prisons, Muntinlupa City) in inserting his penis inside her vagina. After
REYNALDO DE VILLA, petitioner, JUNE DE making thrusting motions with his body,
VILLA, petitioner-relator, vs. THE petitioner ejaculated. This encounter allegedly
DIRECTOR, NEW BILIBID PRISONS, resulted in Aileens pregnancy, which was
respondent. noticed by her mother, Leonila Mendoza,
sometime in November 1994. When
DECISION confronted by her mother, Aileen revealed that
petitioner raped her. Aileens parents then
YNARES-SANTIAGO, J.: brought her to the Pasig Police Station, where
they lodged a criminal complaint against
This is a petition for the issuance of a writ of petitioner.[4]
habeas corpus under Rule 102 of the Rules of
Court. Petitioner Reynaldo de Villa, joined by Dr. Rosaline Cosidon, who examined Aileen,
his son, petitioner-relator June de Villa, seeks confirmed that she was eight months pregnant
a two-fold relief: First, that respondent Director and found in her hymen healed lacerations at
of Prisons justify the basis for the the 5:00 and 8:00 positions. On December 19,
imprisonment of petitioner Reynaldo de Villa; 1994, Aileen gave birth to a baby girl whom
and second, that petitioner be granted a new she named Leahlyn Mendoza.[5]
trial.[1] These reliefs are sought on the basis
of purportedly exculpatory evidence, gathered In his defense, petitioner alleged that, at the
after performing deoxyribonucleic acid (DNA) time of the alleged rape, he was already 67
testing on samples allegedly collected from years old. Old age and sickness had rendered
the petitioner and a child born to the victim of him incapable of having an erection. He further
the rape. averred that Aileens family had been holding a
grudge against him, which accounted for the
By final judgment dated February 1, 2001, in criminal charges. Finally, he interposed the
People of the Philippines v. Reynaldo de defense of alibi, claiming that at the time of the
Villa,[2] we found petitioner guilty of the rape incident, he was in his hometown of San Luis,
of Aileen Mendoza, his niece by affinity; Batangas.[6]
sentenced him to suffer the penalty of reclusin
perpetua; and ordered him to pay the offended The trial court found petitioner guilty beyond
party civil indemnity, moral damages, costs of reasonable doubt of the crime of qualified
the suit, and support for Leahlyn Corales rape, and sentenced him to death, to
Mendoza, the putative child born of the rape. indemnify the victim in the amount of
Petitioner is currently serving his sentence at P50,000.00, to pay the costs of the suit and to
the New Bilibid Prison, Muntinlupa City. support the child, Leahlyn Mendoza.[7]

As summarized in our Decision dated On automatic review,[8] we found that the date
February 1, 2001, Aileen Mendoza charged of birth of Aileens child was medically
petitioner Reynaldo de Villa with rape in an consistent with the time of the rape. Since it
information dated January 9, 1995, filed with was never alleged that Aileen gave birth to a
the Regional Trial Court of Pasig City. When full-term nine-month old baby, we gave
arraigned on January 26, 1995, petitioner credence to the prosecutions contention that
entered a plea of not guilty.[3] she prematurely gave birth to an eight-month
old baby by normal delivery.[9] Thus, we
During the trial, the prosecution established affirmed petitioners conviction for rape, in a
that sometime in the third week of April 1994, Decision the dispositive portion of which
at about 10:00 in the morning, Aileen Mendoza reads:
woke up in her familys rented room in Sagad,
Pasig, Metro Manila, to find petitioner on top of

WHEREFORE, the judgment of the Regional Leahlyn readily agreed and did so. Billy Joe
Trial Court, finding accused-appellant guilty took the sample home and gave it to the
beyond reasonable doubt of the crime of rape, petitioner-relator, who immediately labeled the
is AFFIRMED with the MODIFICATIONS that cup as Container A.
he is sentenced to suffer the penalty of
reclusin perpetua and ordered to pay the Petitioner-relator then gathered samples from
offended party P50,000.00 as civil indemnity; four grandchildren of Reynaldo de Villa. These
P50,000.00 as moral damages; costs of the samples were placed in separate containers
suit and to provide support for the child with distinguishing labels and temporarily
Leahlyn Corales Mendoza. stored in a refrigerator prior to transport to the
DNA Analysis Laboratory at the National
SO ORDERED.[10] Science Research Institute (NSRI).[17] During
transport, the containers containing the saliva
Three years after the promulgation of our samples were kept on ice.
Decision, we are once more faced with the
question of Reynaldo de Villas guilt or Petitioner-relator requested the NSRI to
innocence. conduct DNA testing on the sample given by
Leahlyn Mendoza, those given by the
Petitioner-relator in this case, June de Villa, is grandchildren of Reynaldo de Villa, and that
the son of Reynaldo. He alleges that during the given by Reynaldo de Villa himself. The
trial of the case, he was unaware that there identities of the donors of the samples, save
was a scientific test that could determine once for the sample given by Reynaldo de Villa,
and for all if Reynaldo was the father of the were not made known to the DNA Analysis
victims child, Leahlyn. Petitioner-relator was Laboratory.[18]
only informed during the pendency of the
automatic review of petitioners case that DNA After testing, the DNA Laboratory rendered a
testing could resolve the issue of paternity.[11] preliminary report on March 21, 2003, which
This information was apparently furnished by showed that Reynaldo de Villa could not have
the Free Legal Assistance Group (FLAG) Anti- sired any of the children whose samples were
Death Penalty Task Force, which took over as tested, due to the absence of a match between
counsel for petitioner. the pertinent genetic markers in petitioners
sample and those of any of the other samples,
Thus, petitioners brief in People v. de Villa including Leahlyns.[19]
sought the conduct of a blood type test and
DNA test in order to determine the paternity of Hence, in the instant petition for habeas
the child allegedly conceived as a result of the corpus, petitioner argues as follows:
rape.[12] This relief was implicitly denied in our
Decision of February 21, 2001. DNA ANALYSIS ON PATERNITY SHOWS
On March 16, 2001, Reynaldo de Villa filed a VILLA IS NOT THE FATHER OF LEAHLYN
Motion for Partial Reconsideration of the MENDOZA; HIS CONVICTION FOR RAPE,
Decision, wherein he once more prayed that BASED ON THE FACT THAT LEAHLYN WAS
DNA tests be conducted.[13] The Motion was SIRED AS A RESULT OF THE ALLEGED
denied with finality in a Resolution dated RAPE, CANNOT STAND AND MUST BE SET
November 20, 2001.[14] Hence, the Decision ASIDE.[20]
became final and executory on January 16,
2002.[15] xxxxxxxxx

Petitioner-relator was undaunted by these A NEW TRIAL TO CONSIDER NEWLY

challenges. Having been informed that DNA DISCOVERED EVIDENCE IS PROPER AND
tests required a sample that could be extracted MAY BE ORDERED BY THIS COURT IN
from saliva, petitioner-relator asked Billy Joe VIEW OF THE RESULTS OF THE DNA
de Villa, a grandson of Reynaldo de Villa and TESTS CONDUCTED.[21]
a classmate of Leahlyn Mendoza, to ask
Leahlyn to spit into a new, sterile cup.[16]

Considering that the issues are inter-twined, ousted of this jurisdiction through some
they shall be discussed together. anomaly in the conduct of the proceedings.

In brief, petitioner relies upon the DNA Thus, notwithstanding its historic function as
evidence gathered subsequent to the trial in the great writ of liberty, the writ of habeas
order to re-litigate the factual issue of the corpus has very limited availability as a post-
paternity of the child Leahlyn Mendoza. conviction remedy. In the recent case of Feria
Petitioner alleges that this issue is crucial, v. Court of Appeals,[25] we ruled that review
considering that his conviction in 2001 was of a judgment of conviction is allowed in a
based on the factual finding that he sired the petition for the issuance of the writ of habeas
said child. Since this paternity is now corpus only in very specific instances, such as
conclusively disproved, he argues that the when, as a consequence of a judicial
2001 conviction must be overturned. proceeding, (a) there has been a deprivation
of a constitutional right resulting in the restraint
In essence, petitioner invokes the remedy of of a person; (b) the court had no jurisdiction to
the writ of habeas corpus to collaterally attack impose the sentence; or (c) an excessive
the 2001 Decision. The ancillary remedy of a penalty has been imposed, as such sentence
motion for new trial is resorted to solely to is void as to such excess.[26]
allow the presentation of what is alleged to be
newly-discovered evidence. This Court is thus In this instance, petitioner invokes the writ of
tasked to determine, first, the propriety of the habeas corpus to assail a final judgment of
issuance of a writ of habeas corpus to release conviction, without, however, providing a legal
an individual already convicted and serving ground on which to anchor his petition. In fine,
sentence by virtue of a final and executory petitioner alleges neither the deprivation of a
judgment; and second, the propriety of constitutional right, the absence of jurisdiction
granting a new trial under the same factual of the court imposing the sentence, or that an
scenario. excessive penalty has been imposed upon
The extraordinary writ of habeas corpus has
long been a haven of relief for those seeking In fine, petitioner invokes the remedy of
liberty from any unwarranted denial of freedom habeas corpus in order to seek the review of
of movement. Very broadly, the writ applies to findings of fact long passed upon with finality.
all cases of illegal confinement or detention by This relief is far outside the scope of habeas
which a person has been deprived of his corpus proceedings. In the early case of Abriol
liberty, or by which the rightful custody of any v. Homeres,[27] for example, this Court stated
person has been withheld from the person the general rule that the writ of habeas corpus
entitled thereto.[22] Issuance of the writ is not a writ of error, and should not be thus
necessitates that a person be illegally used. The writ of habeas corpus, whereas
deprived of his liberty. In the celebrated case permitting a collateral challenge of the
of Villavicencio v. Lukban,[23] we stated that jurisdiction of the court or tribunal issuing the
[a]ny restraint which will preclude freedom of process or judgment by which an individual is
action is sufficient.[24] deprived of his liberty, cannot be distorted by
extending the inquiry to mere errors of trial
The most basic criterion for the issuance of the courts acting squarely within their
writ, therefore, is that the individual seeking jurisdiction.[28] The reason for this is
such relief be illegally deprived of his freedom explained very simply in the case of Velasco v.
of movement or placed under some form of Court of Appeals:[29] a habeas corpus petition
illegal restraint. If an individuals liberty is reaches the body, but not the record of the
restrained via some legal process, the writ of case. [30] A record must be allowed to remain
habeas corpus is unavailing. Concomitant to extant, and cannot be revised, modified,
this principle, the writ of habeas corpus cannot altered or amended by the simple expedient of
be used to directly assail a judgment rendered resort to habeas corpus proceedings.
by a competent court or tribunal which, having
duly acquired jurisdiction, was not deprived or Clearly, mere errors of fact or law, which did
not have the effect of depriving the trial court

of its jurisdiction over the case and the person where it sets forth a process which, on its face,
of the defendant, are not correctible in a shows good ground for the detention of the
petition for the issuance of the writ of habeas prisoner, it is incumbent on petitioner to allege
corpus; if at all, these errors must be corrected and prove new matter that tends to invalidate
on certiorari or on appeal, in the form and the apparent effect of such process.[39]
manner prescribed by law.[31] In the past, this
Court has disallowed the review of a courts In the recent case of Calvan v. Court of
appreciation of the evidence in a petition for Appeals,[40] we summarized the scope of
the issuance of a writ of habeas corpus, as this review allowable in a petition for the issuance
is not the function of said writ.[32] A survey of of the writ of habeas corpus. We ruled that the
our decisions in habeas corpus cases writ of habeas corpus, although not designed
demonstrates that, in general, the writ of to interrupt the orderly administration of
habeas corpus is a high prerogative writ which justice, can be invoked by the attendance of a
furnishes an extraordinary remedy; it may thus special circumstance that requires immediate
be invoked only under extraordinary action. In such situations, the inquiry on a writ
circumstances.[33] We have been categorical of habeas corpus would be addressed, not to
in our pronouncements that the writ of habeas errors committed by a court within its
corpus is not to be used as a substitute for jurisdiction, but to the question of whether the
another, more proper remedy. Resort to the proceeding or judgment under which a person
writ of habeas corpus is available only in the has been restrained is a complete nullity. The
limited instances when a judgment is rendered probe may thus proceed to check on the power
by a court or tribunal devoid of jurisdiction. If, and authority, itself an equivalent test of
for instance, it can be demonstrated that there jurisdiction, of the court or the judge to render
was a deprivation of a constitutional right, the the order that so serves as the basis of
writ can be granted even after an individual imprisonment or detention.[41] It is the nullity
has been meted a sentence by final judgment. of an assailed judgment of conviction which
makes it susceptible to collateral attack
Thus, in the case of Chavez v. Court of through the filing of a petition for the issuance
Appeals,[34] the writ of habeas corpus was of the writ of habeas corpus.
held to be available where an accused was
deprived of the constitutional right against self- Upon a perusal of the records not merely of
incrimination. A defect so pronounced as the this case but of People v. de Villa, we find that
denial of an accuseds constitutional rights the remedy of the writ of habeas corpus is
results in the absence or loss of jurisdiction, unavailing.
and therefore invalidates the trial and the
consequent conviction of the accused. That First, the denial of a constitutional right has not
void judgment of conviction may be been alleged by petitioner. As such, this Court
challenged by collateral attack, which is hard-pressed to find legal basis on which to
precisely is the function of habeas corpus.[35] anchor the grant of a writ of habeas corpus.
Later, in Gumabon v. Director of the Bureau of Much as this Court sympathizes with
Prisons,[36] this Court ruled that, once a petitioners plea, a careful scrutiny of the
deprivation of a constitutional right is shown to records does not reveal any constitutional right
exist, the court that rendered the judgment is of which the petitioner was unduly deprived.
deemed ousted of jurisdiction and habeas
corpus is the appropriate remedy to assail the We are aware that other jurisdictions have
legality of the detention.[37] Although in Feria seen fit to grant the writ of habeas corpus in
v. Court of Appeals[38] this Court was inclined order to test claims that a defendant was
to allow the presentation of new evidence in a denied effective aid of counsel.[42] In this
petition for the issuance of a writ of habeas instance, we note that the record is replete
corpus, this was an exceptional situation. In with errors committed by counsel, and it can
that case, we laid down the general rule, which be alleged that the petitioner was, at trial,
states that the burden of proving illegal denied the effective aid of counsel. The United
restraint by the respondent rests on the States Supreme Court requires a defendant
petitioner who attacks such restraint. Where alleging incompetent counsel to show that the
the return is not subject to exception, that is, attorneys performance was deficient under a

reasonable standard, and additionally to show corpus to seek a re-examination of the records
that the outcome of the trial would have been of People v. de Villa, without asserting any
different with competent counsel.[43] The legal grounds therefor. For all intents and
purpose of the right to effective assistance of purposes, petitioner seeks a reevaluation of
counsel is to ensure that the defendant the evidentiary basis for his conviction. We are
receives a fair trial.[44] being asked to reexamine the weight and
sufficiency of the evidence in this case, not on
The U.S. Supreme Court asserts that in its own, but in light of the new DNA evidence
judging any claim of ineffective assistance of that the petitioner seeks to present to this
counsel, one must examine whether counsels Court. This relief is outside the scope of a
conduct undermined the proper functioning of habeas corpus petition. The petition for
the adversarial process to such an extent that habeas corpus must, therefore, fail.
the trial did not produce a fair and just
result.[45] The proper measure of attorney Coupled with the prayer for the issuance of a
performance is reasonable under the writ of habeas corpus, petitioner seeks a new
prevailing professional norms, and the trial to re-litigate the issue of the paternity of
defendant must show that the representation the child Leahlyn Mendoza.
received fell below the objective standard of
reasonableness.[46] For the petition to It must be stressed that the issue of Leahlyn
succeed, the strong presumption that the Mendozas paternity is not central to the issue
counsels conduct falls within the wide range or of petitioners guilt or innocence. The rape of
reasonable professional assistance must be the victim Aileen Mendoza is an entirely
overcome.[47] different question, separate and distinct from
the question of the father of her child.
In the case at bar, it appears that in the middle Recently, in the case of People v. Alberio,[51]
of the appeal, the petitioners counsel of we ruled that the fact or not of the victims
record, a certain Atty. Alfonso G. Salvador, pregnancy and resultant childbirth are
suddenly and inexplicably withdrew his irrelevant in determining whether or not she
appearance as counsel, giving the sole was raped. Pregnancy is not an essential
explanation that he was leaving for the United element of the crime of rape. Whether the child
States for an indefinite period of time by virtue which the victim bore was fathered by the
of a petition filed in his favor.[48] In the face of purported rapist, or by some unknown
this abandonment, petitioner made an individual, is of no moment in determining an
impassioned plea that his lawyer be prevented individuals guilt.
from this withdrawal in a handwritten Urgent
Motion for Reconsideration and Opposition of In the instant case, however, we note that the
Counsels Withdrawal of Appearance with grant of child support to Leahlyn Mendoza
Leave of Court received by this Court on indicates that our Decision was based, at least
September 14, 1999.[49] Petitioner alleged in small measure, on the victims claim that the
that his counsels withdrawal is an untimely and petitioner fathered her child. This claim was
heartbreaking event, considering that he had given credence by the trial court, and, as a
placed all [his] trust and confidence on [his finding of fact, was affirmed by this Court on
counsels] unquestionable integrity and automatic review.
The fact of the childs paternity is now in issue,
While we are sympathetic to petitioners plight, centrally relevant to the civil award of child
we do not, however, find that there was such support. It is only tangentially related to the
negligence committed by his earlier counsel issue of petitioners guilt. However, if it can be
so as to amount to a denial of a constitutional conclusively determined that the petitioner did
right. There is likewise no showing that the not sire Leahlyn Mendoza, this may cast the
proceedings were tainted with any other shadow of reasonable doubt, and allow the
jurisdictional defect. acquittal of the petitioner on this basis.

In fine, we find that petitioner invokes the Be that as it may, it appears that the petitioner
remedy of the petition for a writ of habeas once more relies upon erroneous legal

grounds in resorting to the remedy of a motion or impeaching; and (d) that the evidence is of
for new trial. A motion for new trial, under the such weight that that, if admitted, it would
Revised Rules of Criminal Procedure, is probably change the judgment.[52] It is
available only for a limited period of time, and essential that the offering party exercised
for very limited grounds. Under Section 1, Rule reasonable diligence in seeking to locate the
121, of the Revised Rules of Criminal evidence before or during trial but nonetheless
Procedure, a motion for new trial may be filed failed to secure it.[53]
at any time before a judgment of conviction
becomes final, that is, within fifteen (15) days In this instance, although the DNA evidence
from its promulgation or notice. Upon finality of was undoubtedly discovered after the trial, we
the judgment, therefore, a motion for new trial nonetheless find that it does not meet the
is no longer an available remedy. Section 2 of criteria for newly-discovered evidence that
Rule 121 enumerates the grounds for a new would merit a new trial. Such evidence
trial: disproving paternity could have been
discovered and produced at trial with the
SEC. 2. Grounds for a new trial.The court shall exercise of reasonable diligence.
grant a new trial on any of the following
grounds: Petitioner-relators claim that he was unaware
of the existence of DNA testing until the trial
(a) That errors of law or irregularities was concluded carries no weight with this
prejudicial to the substantial rights of the Court. Lack of knowledge of the existence of
accused have been committed during the trial; DNA testing speaks of negligence, either on
the part of petitioner, or on the part of
(b) That new and material evidence has been petitioners counsel. In either instance,
discovered which the accused could not with however, this negligence is binding upon
reasonable diligence have discovered and petitioner. It is a settled rule that a party cannot
produced at the trial and which if introduced blame his counsel for negligence when he
and admitted would probably change the himself was guilty of neglect.[54] A client is
judgment. bound by the acts of his counsel, including the
latters mistakes and negligence.[55] It is
In the case at bar, petitioner anchors his plea likewise settled that relief will not be granted to
on the basis of purportedly newly-discovered a party who seeks to be relieved from the
evidence, i.e., the DNA test subsequently effects of the judgment when the loss of the
conducted, allegedly excluding petitioner from remedy at law was due to his own negligence,
the child purportedly fathered as a result of the or to a mistaken mode of procedure.[56]
Even with all of the compelling and persuasive
The decision sought to be reviewed in this scientific evidence presented by petitioner and
petition for the issuance of a writ of habeas his counsel, we are not convinced that
corpus has long attained finality, and entry of Reynaldo de Villa is entitled to outright
judgment was made as far back as January acquittal. As correctly pointed out by the
16, 2002. Moreover, upon an examination of Solicitor General, even if it is conclusively
the evidence presented by the petitioner, we proven that Reynaldo de Villa is not the father
do not find that the DNA evidence falls within of Leahlyn Mendoza, his conviction could, in
the statutory or jurisprudential definition of theory, still stand, with Aileen Mendozas
newly- discovered evidence. testimony and positive identification as its
bases.[57] The Solicitor General reiterates,
A motion for new trial based on newly- and correctly so, that the pregnancy of the
discovered evidence may be granted only if victim has never been an element of the crime
the following requisites are met: (a) that the of rape.[58] Therefore, the DNA evidence has
evidence was discovered after trial; (b) that failed to conclusively prove to this Court that
said evidence could not have been discovered Reynaldo de Villa should be discharged.
and produced at the trial even with the Although petitioner claims that conviction was
exercise of reasonable diligence; (c) that it is based solely on a finding of paternity of the
material, not merely cumulative, corroborative child Leahlyn, this is not the case. Our

conviction was based on the clear and

convincing testimonial evidence of the victim,
which, given credence by the trial court, was
affirmed on appeal.

WHEREFORE, in view of the foregoing, the

instant petition for habeas corpus and new trial
is DISMISSED for lack of merit.

No costs.


WRIT OF AMPARO AFP, their agents, representatives, or persons

acting in their stead, including but not limited
G.R. No. 180906 October 7, 2008 to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and
THE SECRETARY OF NATIONAL (2) enjoined them from causing the arrest of
DEFENSE, THE CHIEF OF STAFF, ARMED therein petitioners, or otherwise restricting,
FORCES OF THE PHILIPPINES, petitioners, curtailing, abridging, or depriving them of their
vs. right to life, liberty, and other basic rights as
RAYMOND MANALO and REYNALDO guaranteed under Article III, Section 14 of the
MANALO, respondents. 1987 Constitution.5

DECISION While the August 23, 2007 Petition was

pending, the Rule on the Writ of Amparo took
PUNO, C.J.: effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus
While victims of enforced disappearances are Motion to Treat Existing Petition as Amparo
separated from the rest of the world behind Petition, to Admit Supporting Affidavits, and to
secret walls, they are not separated from the Grant Interim and Final Amparo Reliefs. They
constitutional protection of their basic rights. prayed that: (1) the petition be considered a
The constitution is an overarching sky that Petition for the Writ of Amparo under Sec. 266
covers all in its protection. The case at bar of the Amparo Rule; (2) the Court issue the writ
involves the rights to life, liberty and security in commanding therein respondents to make a
the first petition for a writ of Amparo filed verified return within the period provided by
before this Court. law and containing the specific matter required
by law; (3) they be granted the interim reliefs
This is an appeal via Petition for Review under allowed by the Amparo Rule and all other
Rule 45 of the Rules of Court in relation to reliefs prayed for in the petition but not covered
Section 191 of the Rule on the Writ of Amparo, by the Amparo Rule; (4) the Court, after
seeking to reverse and set aside on both hearing, render judgment as required in Sec.
questions of fact and law, the Decision 187 of the Amparo Rule; and (5) all other just
promulgated by the Court of Appeals in C.A. and equitable reliefs.8
G.R. AMPARO No. 00001, entitled "Raymond
Manalo and Reynaldo Manalo, petitioners, On October 25, 2007, the Court resolved to
versus The Secretary of National Defense, the treat the August 23, 2007 Petition as a petition
Chief of Staff, Armed Forces of the Philippines, under the Amparo Rule and further resolved,
respondents." viz:

This case was originally a Petition for WHEREFORE, let a WRIT OF AMPARO be
Prohibition, Injunction, and Temporary issued to respondents requiring them to file
Restraining Order (TRO)2 filed before this with the CA (Court of Appeals) a verified
Court by herein respondents (therein written return within five (5) working days from
petitioners) on August 23, 2007 to stop herein service of the writ. We REMAND the petition
petitioners (therein respondents) and/or their to the CA and designate the Division of
officers and agents from depriving them of Associate Justice Lucas P. Bersamin to
their right to liberty and other basic rights. conduct the summary hearing on the petition
Therein petitioners also sought ancillary on November 8, 2007 at 2:00 p.m. and decide
remedies, Protective Custody Orders, the petition in accordance with the Rule on the
Appointment of Commissioner, Inspection and Writ of Amparo.9
Access Orders, and all other legal and
equitable reliefs under Article VIII, Section On December 26, 2007, the Court of Appeals
5(5)3 of the 1987 Constitution and Rule 135, rendered a decision in favor of therein
Section 6 of the Rules of Court. In our petitioners (herein respondents), the
Resolution dated August 24, 2007, we (1) dispositive portion of which reads, viz:
ordered the Secretary of the Department of
National Defense and the Chief of Staff of the

ACCORDINGLY, the PRIVILEGE OF THE pants and army boots, entered their house and
WRIT OF AMPARO is GRANTED. roused him. They asked him if he was Bestre,
but his mother, Ester Manalo, replied that he
The respondents SECRETARY OF was Raymond, not Bestre. The armed soldier
NATIONAL DEFENSE and AFP CHIEF OF slapped him on both cheeks and nudged him
STAFF are hereby REQUIRED: in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to
1. To furnish to the petitioners and to this Court the ground face down. He was kicked on the
within five days from notice of this decision all hip, ordered to stand and face up to the light,
official and unofficial reports of the then forcibly brought near the road. He told his
investigation undertaken in connection with mother to follow him, but three soldiers
their case, except those already on file herein; stopped her and told her to stay.12

2. To confirm in writing the present places of Among the men who came to take him,
official assignment of M/Sgt Hilario aka Rollie Raymond recognized brothers Michael de la
Castillo and Donald Caigas within five days Cruz, Madning de la Cruz, "Puti" de la Cruz,
from notice of this decision. and "Pula" de la Cruz, who all acted as
lookout. They were all members of the CAFGU
3. To cause to be produced to this Court all and residing in Manuzon, San Ildefonso,
medical reports, records and charts, reports of Bulacan. He also recognized brothers Randy
any treatment given or recommended and Mendoza and Rudy Mendoza, also members
medicines prescribed, if any, to the petitioners, of the CAFGU. While he was being forcibly
to include a list of medical and (sic) personnel taken, he also saw outside of his house two
(military and civilian) who attended to them barangay councilors, Pablo Cunanan and
from February 14, 2006 until August 12, 2007 Bernardo Lingasa, with some soldiers and
within five days from notice of this decision. armed men.13

The compliance with this decision shall be The men forced Raymond into a white L300
made under the signature and oath of van. Once inside, he was blindfolded. Before
respondent AFP Chief of Staff or his duly being blindfolded, he saw the faces of the
authorized deputy, the latter's authority to be soldiers who took him. Later, in his 18 months
express and made apparent on the face of the of captivity, he learned their names. The one
sworn compliance with this directive. who drove the van was Rizal Hilario alias
Rollie Castillo, whom he estimated was about
SO ORDERED.10 40 years of age or older. The leader of the
team who entered his house and abducted
Hence, this appeal. In resolving this appeal, him was "Ganata." He was tall, thin, curly-
we first unfurl the facts as alleged by herein haired and a bit old. Another one of his
respondents: abductors was "George" who was tall, thin,
white-skinned and about 30 years old.14
Respondent Raymond Manalo recounted that
about one or two weeks before February 14, The van drove off, then came to a stop. A
2006, several uniformed and armed soldiers person was brought inside the van and made
and members of the CAFGU summoned to a to sit beside Raymond. Both of them were
meeting all the residents of their barangay in beaten up. On the road, he recognized the
San Idelfonso, Bulacan. Respondents were voice of the person beside him as his brother
not able to attend as they were not informed of Reynaldo's. The van stopped several times
the gathering, but Raymond saw some of the until they finally arrived at a house. Raymond
soldiers when he passed by the barangay and Reynaldo were each brought to a different
hall.11 room. With the doors of their rooms left open,
Raymond saw several soldiers continuously
On February 14, 2006, Raymond was sleeping hitting his brother Reynaldo on the head and
in their house in Buhol na Mangga, San other parts of his body with the butt of their
Ildefonso, Bulacan. At past noon, several guns for about 15 minutes. After which,
armed soldiers wearing white shirts, fatigue Reynaldo was brought to his (Raymond's)

room and it was his (Raymond's) turn to be chains. After walking through a forested area,
beaten up in the other room. The soldiers he came near a river and an Iglesia ni Kristo
asked him if he was a member of the New church. He talked to some women who were
People's Army. Each time he said he was not, doing the laundry, asked where he was and
he was hit with the butt of their guns. He was the road to Gapan. He was told that he was in
questioned where his comrades were, how Fort Magsaysay.19 He reached the highway,
many soldiers he had killed, and how many but some soldiers spotted him, forcing him to
NPA members he had helped. Each time he run away. The soldiers chased him and caught
answered none, they hit him.15 up with him. They brought him to another place
near the entrance of what he saw was Fort
In the next days, Raymond's interrogators Magsaysay. He was boxed repeatedly, kicked,
appeared to be high officials as the soldiers and hit with chains until his back bled. They
who beat him up would salute them, call them poured gasoline on him. Then a so-called
"sir," and treat them with respect. He was in "Mam" or "Madam" suddenly called, saying
blindfolds when interrogated by the high that she wanted to see Raymond before he
officials, but he saw their faces when they was killed. The soldiers ceased the torture and
arrived and before the blindfold was put on. He he was returned inside Fort Magsaysay where
noticed that the uniform of the high officials Reynaldo was detained.20
was different from those of the other soldiers.
One of those officials was tall and thin, wore For some weeks, the respondents had a
white pants, tie, and leather shoes, instead of respite from all the torture. Their wounds were
combat boots. He spoke in Tagalog and knew treated. When the wounds were almost
much about his parents and family, and a healed, the torture resumed, particularly when
habeas corpus case filed in connection with respondents' guards got drunk.21
the respondents' abduction.16 While these
officials interrogated him, Raymond was not Raymond recalled that sometime in April until
manhandled. But once they had left, the May 2006, he was detained in a room
soldier guards beat him up. When the guards enclosed by steel bars. He stayed all the time
got drunk, they also manhandled respondents. in that small room measuring 1 x 2 meters, and
During this time, Raymond was fed only at did everything there, including urinating,
night, usually with left-over and rotten food.17 removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22
On the third week of respondents' detention, had been detained in that bartolina, including
two men arrived while Raymond was sleeping his brother Reynaldo and himself.23
and beat him up. They doused him with urine
and hot water, hit his stomach with a piece of For about three and a half months, the
wood, slapped his forehead twice with a .45 respondents were detained in Fort
pistol, punched him on the mouth, and burnt Magsaysay. They were kept in a small house
some parts of his body with a burning wood. with two rooms and a kitchen. One room was
When he could no longer endure the torture made into the bartolina. The house was near
and could hardly breathe, they stopped. They the firing range, helipad and mango trees. At
then subjected Reynaldo to the same ordeal in dawn, soldiers marched by their house. They
another room. Before their torturers left, they were also sometimes detained in what he only
warned Raymond that they would come back knew as the "DTU."24
the next day and kill him.18
At the DTU, a male doctor came to examine
The following night, Raymond attempted to respondents. He checked their body and eyes,
escape. He waited for the guards to get drunk, took their urine samples and marked them.
then made noise with the chains put on him to When asked how they were feeling, they
see if they were still awake. When none of replied that they had a hard time urinating,
them came to check on him, he managed to their stomachs were aching, and they felt other
free his hand from the chains and jumped pains in their body. The next day, two ladies in
through the window. He passed through a white arrived. They also examined
helipad and firing range and stopped near a respondents and gave them medicines,
fishpond where he used stones to break his including orasol, amoxicillin and mefenamic

acid. They brought with them the results of sabihin mo sa magulang mo - huwag pumunta
respondents' urine test and advised them to sa mga rali, sa hearing, sa Karapatan at sa
drink plenty of water and take their medicine. Human Right dahil niloloko lang kayo. Sabihin
The two ladies returned a few more times. sa magulang at lahat sa bahay na huwag
Thereafter, medicines were sent through the paloko doon. Tulungan kami na kausapin si
"master" of the DTU, "Master" Del Rosario Bestre na sumuko na sa gobyerno."28
alias Carinyoso at Puti. Respondents were
kept in the DTU for about two weeks. While Respondents agreed to do as Gen. Palparan
there, he met a soldier named Efren who said told them as they felt they could not do
that Gen. Palparan ordered him to monitor and otherwise. At about 3:00 in the morning,
take care of them.25 Hilario, Efren and the former's men - the same
group that abducted them - brought them to
One day, Rizal Hilario fetched respondents in their parents' house. Raymond was shown to
a Revo vehicle. They, along with Efren and his parents while Reynaldo stayed in the Revo
several other armed men wearing fatigue because he still could not walk. In the
suits, went to a detachment in Pinaud, San presence of Hilario and other soldiers,
Ildefonso, Bulacan. Respondents were Raymond relayed to his parents what Gen.
detained for one or two weeks in a big two- Palparan told him. As they were afraid,
storey house. Hilario and Efren stayed with Raymond's parents acceded. Hilario
them. While there, Raymond was beaten up by threatened Raymond's parents that if they
Hilario's men.26 continued to join human rights rallies, they
would never see their children again. The
From Pinaud, Hilario and Efren brought respondents were then brought back to
respondents to Sapang, San Miguel, Bulacan Sapang.29
on board the Revo. They were detained in a
big unfinished house inside the compound of When respondents arrived back in Sapang,
"Kapitan" for about three months. When they Gen. Palparan was about to leave. He was
arrived in Sapang, Gen. Palparan talked to talking with the four "masters" who were there:
them. They were brought out of the house to a Arman, Ganata, Hilario and Cabalse.30 When
basketball court in the center of the compound Gen. Palparan saw Raymond, he called for
and made to sit. Gen. Palparan was already him. He was in a big white vehicle. Raymond
waiting, seated. He was about two arms' stood outside the vehicle as Gen. Palparan
length away from respondents. He began by told him to gain back his strength and be
asking if respondents felt well already, to healthy and to take the medicine he left for him
which Raymond replied in the affirmative. He and Reynaldo. He said the medicine was
asked Raymond if he knew him. Raymond lied expensive at Php35.00 each, and would make
that he did not. He then asked Raymond if he them strong. He also said that they should
would be scared if he were made to face Gen. prove that they are on the side of the military
Palparan. Raymond responded that he would and warned that they would not be given
not be because he did not believe that Gen. another chance.31 During his testimony,
Palparan was an evil man.27 Raymond identified Gen. Palparan by his
Raymond narrated his conversation with Gen.
Palparan in his affidavit, viz: One of the soldiers named Arman made
Raymond take the medicine left by Gen.
Tinanong ako ni Gen. Palparan, "Ngayon na Palparan. The medicine, named "Alive," was
kaharap mo na ako, di ka ba natatakot sa green and yellow. Raymond and Reynaldo
akin?" were each given a box of this medicine and
instructed to take one capsule a day. Arman
Sumagot akong, "Siyempre po, natatakot checked if they were getting their dose of the
din..." medicine. The "Alive" made them sleep each
time they took it, and they felt heavy upon
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo waking up.33
ng isang pagkakataon na mabuhay, basta't
sundin n'yo ang lahat ng sasabihin ko...

After a few days, Hilario arrived again. He took should continue along their "renewed life."
Reynaldo and left Raymond at Sapang. Arman Before the hearing of November 6 or 8, 2006,
instructed Raymond that while in Sapang, he respondents were brought to their parents to
should introduce himself as "Oscar," a military instruct them not to attend the hearing.
trainee from Sariaya, Quezon, assigned in However, their parents had already left for
Bulacan. While there, he saw again Ganata, Manila. Respondents were brought back to
one of the men who abducted him from his Camp Tecson. They stayed in that camp from
house, and got acquainted with other military September 2006 to November 2006, and
men and civilians.34 Raymond was instructed to continue using the
name "Oscar" and holding himself out as a
After about three months in Sapang, Raymond military trainee. He got acquainted with
was brought to Camp Tecson under the 24th soldiers of the 24th Infantry Battalion whose
Infantry Battalion. He was fetched by three names and descriptions he stated in his
unidentified men in a big white vehicle. Efren affidavit.38
went with them. Raymond was then
blindfolded. After a 30-minute ride, his On November 22, 2006, respondents, along
blindfold was removed. Chains were put on with Sherlyn, Karen, and Manuel, were
him and he was kept in the barracks.35 transferred to a camp of the 24th Infantry
Battalion in Limay, Bataan. There were many
The next day, Raymond's chains were huts in the camp. They stayed in that camp
removed and he was ordered to clean outside until May 8, 2007. Some soldiers of the
the barracks. It was then he learned that he battalion stayed with them. While there,
was in a detachment of the Rangers. There battalion soldiers whom Raymond knew as
were many soldiers, hundreds of them were "Mar" and "Billy" beat him up and hit him in the
training. He was also ordered to clean inside stomach with their guns. Sherlyn and Karen
the barracks. In one of the rooms therein, he also suffered enormous torture in the camp.
met Sherlyn Cadapan from Laguna. She told They were all made to clean, cook, and help in
him that she was a student of the University of raising livestock.39
the Philippines and was abducted in Hagonoy,
Bulacan. She confided that she had been Raymond recalled that when "Operation
subjected to severe torture and raped. She Lubog" was launched, Caigas and some other
was crying and longing to go home and be with soldiers brought him and Manuel with them to
her parents. During the day, her chains were take and kill all sympathizers of the NPA. They
removed and she was made to do the were brought to Barangay Bayan-bayanan,
laundry.36 Bataan where he witnessed the killing of an old
man doing kaingin. The soldiers said he was
After a week, Reynaldo was also brought to killed because he had a son who was a
Camp Tecson. Two days from his arrival, two member of the NPA and he coddled NPA
other captives, Karen Empeño and Manuel members in his house.40 Another time, in
Merino, arrived. Karen and Manuel were put in another "Operation Lubog," Raymond was
the room with "Allan" whose name they later brought to Barangay Orion in a house where
came to know as Donald Caigas, called NPA men stayed. When they arrived, only the
"master" or "commander" by his men in the old man of the house who was sick was there.
24th Infantry Battalion. Raymond and They spared him and killed only his son right
Reynaldo were put in the adjoining room. At before Raymond's eyes.41
times, Raymond and Reynaldo were
threatened, and Reynaldo was beaten up. In From Limay, Raymond, Reynaldo, Sherlyn,
the daytime, their chains were removed, but Karen, and Manuel were transferred to
were put back on at night. They were Zambales, in a safehouse near the sea.
threatened that if they escaped, their families Caigas and some of his men stayed with them.
would all be killed.37 A retired army soldier was in charge of the
house. Like in Limay, the five detainees were
On or about October 6, 2006, Hilario arrived in made to do errands and chores. They stayed
Camp Tecson. He told the detainees that they in Zambales from May 8 or 9, 2007 until June
should be thankful they were still alive and 2007.42

Sumilip ako sa isang haligi ng kamalig at

In June 2007, Caigas brought the five back to nakita kong sinisilaban si Manuel.
the camp in Limay. Raymond, Reynaldo, and
Manuel were tasked to bring food to detainees Kinaumagahan, naka-kadena pa kami.
brought to the camp. Raymond narrated what Tinanggal ang mga kadena mga 3 o 4 na araw
he witnessed and experienced in the camp, pagkalipas. Sinabi sa amin na kaya kami
viz: nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o hindi.
Isang gabi, sinabihan kami ni Donald (Caigas)
na matulog na kami. Nakita ko si Donald na Tinanggal ang aming kadena. Kinausap kami
inaayos ang kanyang baril, at nilagyan ng ni Donald. Tinanong kami kung ano ang sabi
silenser. Sabi ni Donald na kung mayroon man ni Manuel sa amin. Sabi ni Donald huwag na
kaming makita o marinig, walang nangyari. raw naming hanapin ang dalawang babae at
Kinaumagahan, nakita naming ang bangkay si Manuel, dahil magkakasama na yung tatlo.
ng isa sa mga bihag na dinala sa kampo. Sabi pa ni Donald na kami ni Reynaldo ay
Mayroong binuhos sa kanyang katawan at magbagong buhay at ituloy namin ni Reynaldo
ito'y sinunog. Masansang ang amoy. ang trabaho. Sa gabi, hindi na kami
Makaraan ang isang lingo, dalawang bangkay
and ibinaba ng mga unipormadong sundalo On or about June 13, 2007, Raymond and
mula sa 6 x 6 na trak at dinala sa loob ng Reynaldo were brought to Pangasinan,
kampo. May naiwang mga bakas ng dugo ostensibly to raise poultry for Donald (Caigas).
habang hinihila nila ang mga bangkay. Caigas told respondents to also farm his land,
Naamoy ko iyon nang nililinis ang bakas. in exchange for which, he would take care of
the food of their family. They were also told
Makalipas ang isa o dalawang lingo, may that they could farm a small plot adjoining his
dinukot sila na dalawang Ita. Itinali sila sa land and sell their produce. They were no
labas ng kubo, piniringan, ikinadena at labis longer put in chains and were instructed to use
na binugbog. Nakita kong nakatakas ang isa the names Rommel (for Raymond) and Rod
sa kanila at binaril siya ng sundalo ngunit hindi (for Reynaldo) and represent themselves as
siya tinamaan. Iyong gabi nakita kong pinatay cousins from Rizal, Laguna.44
nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito. Respondents started to plan their escape.
They could see the highway from where they
Pagkalipas ng halos 1 buwan, 2 pang bangkay stayed. They helped farm adjoining lands for
ang dinala sa kampo. Ibinaba ang mga which they were paid Php200.00 or
bangkay mula sa pick up trak, dinala ang mga Php400.00 and they saved their earnings.
bangkay sa labas ng bakod. Kinaumagahan When they had saved Php1,000.00 each,
nakita kong mayroong sinilaban, at Raymond asked a neighbor how he could get
napakamasangsang ang amoy. a cellular phone as he wanted to exchange
text messages with a girl who lived nearby. A
May nakilala rin akong 1 retiradong koronel at phone was pawned to him, but he kept it first
1 kasama niya. Pinakain ko sila. Sabi nila sa and did not use it. They earned some more
akin na dinukot sila sa Bataan. Iyong gabi, until they had saved Php1,400.00 between
inilabas sila at hindi ko na sila nakita. them.

xxx xxx xxx There were four houses in the compound.

Raymond and Reynaldo were housed in one
Ikinadena kami ng 3 araw. Sa ikatlong araw, of them while their guards lived in the other
nilabas ni Lat si Manuel dahil kakausapin daw three. Caigas entrusted respondents to
siya ni Gen. Palparan. Nakapiring si Manuel, Nonong, the head of the guards. Respondents'
wala siyang suot pang-itaas, pinosasan. house did not have electricity. They used a
Nilakasan ng mga sundalo ang tunog na lamp. There was no television, but they had a
galing sa istiryo ng sasakyan. Di nagtagal, radio. In the evening of August 13, 2007,
narinig ko ang hiyaw o ungol ni Manuel. Nonong and his cohorts had a drinking

session. At about 1:00 a.m., Raymond turned He was requested by an NGO to conduct
up the volume of the radio. When none of the medical examinations on the respondents
guards awoke and took notice, Raymond and after their escape. He first asked them about
Reynaldo proceeded towards the highway, their ordeal, then proceeded with the physical
leaving behind their sleeping guards and examination. His findings showed that the
barking dogs. They boarded a bus bound for scars borne by respondents were consistent
Manila and were thus freed from captivity.45 with their account of physical injuries inflicted
upon them. The examination was conducted
Reynaldo also executed an affidavit affirming on August 15, 2007, two days after
the contents of Raymond's affidavit insofar as respondents' escape, and the results thereof
they related to matters they witnessed were reduced into writing. Dr. Molino took
together. Reynaldo added that when they photographs of the scars. He testified that he
were taken from their house on February 14, followed the Istanbul Protocol in conducting
2006, he saw the faces of his abductors before the examination.47
he was blindfolded with his shirt. He also
named the soldiers he got acquainted with in Petitioners dispute respondents' account of
the 18 months he was detained. When their alleged abduction and torture. In
Raymond attempted to escape from Fort compliance with the October 25, 2007
Magsaysay, Reynaldo was severely beaten up Resolution of the Court, they filed a Return of
and told that they were indeed members of the the Writ of Amparo admitting the abduction but
NPA because Raymond escaped. With a .45 denying any involvement therein, viz:
caliber pistol, Reynaldo was hit on the back
and punched in the face until he could no 13. Petitioners Raymond and Reynaldo
longer bear the pain. Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado,
At one point during their detention, when disappeared or under the custody by the
Raymond and Reynaldo were in Sapang, military. This is a settled issue laid to rest in the
Reynaldo was separated from Raymond and habeas corpus case filed in their behalf by
brought to Pinaud by Rizal Hilario. He was petitioners' parents before the Court of
kept in the house of Kapitan, a friend of Hilario, Appeals in C.A.-G.R. SP No. 94431 against
in a mountainous area. He was instructed to M/Sgt. Rizal Hilario aka Rollie Castillo, as
use the name "Rodel" and to represent himself head of the 24th Infantry Battalion; Maj. Gen.
as a military trainee from Meycauayan, Jovito Palparan, as Commander of the 7th
Bulacan. Sometimes, Hilario brought along Infantry Division in Luzon; Lt. Gen.
Reynaldo in his trips. One time, he was Hermogenes Esperon, in his capacity as the
brought to a market in San Jose, del Monte, Commanding General of the Philippine Army,
Bulacan and made to wait in the vehicle while and members of the Citizens Armed Forces
Hilario was buying. He was also brought to Geographical Unit (CAFGU), namely: Michael
Tondo, Manila where Hilario delivered boxes dela Cruz, Puti dela Cruz, Madning dela Cruz,
of "Alive" in different houses. In these trips, Pula dela Cruz, Randy Mendoza and Rudy
Hilario drove a black and red vehicle. Mendoza. The respondents therein submitted
Reynaldo was blindfolded while still in a return of the writ... On July 4, 2006, the Court
Bulacan, but allowed to remove the blindfold of Appeals dropped as party respondents Lt.
once outside the province. In one of their trips, Gen. Hermogenes C. Esperon, Jr., then
they passed by Fort Magsaysay and Camp Commanding General of the Philippine Army,
Tecson where Reynaldo saw the sign board, and on September 19, 2006, Maj. (sic) Jovito
"Welcome to Camp Tecson."46 S. Palparan, then Commanding General, 7th
Infantry Division, Philippine Army, stationed at
Dr. Benito Molino, M.D., corroborated the Fort Magsaysay, Palayan City, Nueva Ecija,
accounts of respondents Raymond and upon a finding that no evidence was
Reynaldo Manalo. Dr. Molino specialized in introduced to establish their personal
forensic medicine and was connected with the involvement in the taking of the Manalo
Medical Action Group, an organization brothers. In a Decision dated June 27, 2007...,
handling cases of human rights violations, it exonerated M/Sgt. Rizal Hilario aka Rollie
particularly cases where torture was involved. Castillo for lack of evidence establishing his

involvement in any capacity in the any pattern or practice that may have brought
disappearance of the Manalo brothers, about the death or disappearance;
although it held that the remaining
respondents were illegally detaining the (5) to identify and apprehend the person or
Manalo brothers and ordered them to release persons involved in the death or
the latter.48 disappearance; and

Attached to the Return of the Writ was the (6) to bring the suspected offenders before a
affidavit of therein respondent (herein competent court.49
petitioner) Secretary of National Defense,
which attested that he assumed office only on Therein respondent AFP Chief of Staff also
August 8, 2007 and was thus unaware of the submitted his own affidavit, attached to the
Manalo brothers' alleged abduction. He also Return of the Writ, attesting that he received
claimed that: the above directive of therein respondent
Secretary of National Defense and that acting
7. The Secretary of National Defense does not on this directive, he did the following:
engage in actual military directional
operations, neither does he undertake 3.1. As currently designated Chief of Staff,
command directions of the AFP units in the Armed Forces of the Philippines (AFP), I have
field, nor in any way micromanage the AFP caused to be issued directive to the units of the
operations. The principal responsibility of the AFP for the purpose of establishing the
Secretary of National Defense is focused in circumstances of the alleged disappearance
providing strategic policy direction to the and the recent reappearance of the
Department (bureaus and agencies) including petitioners.
the Armed Forces of the Philippines;
3.2. I have caused the immediate investigation
8. In connection with the Writ of Amparo and submission of the result thereof to Higher
issued by the Honorable Supreme Court in this headquarters and/or direct the immediate
case, I have directed the Chief of Staff, AFP to conduct of the investigation on the matter by
institute immediate action in compliance with the concerned unit/s, dispatching Radio
Section 9(d) of the Amparo Rule and to submit Message on November 05, 2007, addressed
report of such compliance... Likewise, in a to the Commanding General, Philippine Army
Memorandum Directive also dated October (Info: COMNOLCOM, CG, 71D PA and CO 24
31, 2007, I have issued a policy directive IB PA). A Copy of the Radio Message is
addressed to the Chief of Staff, AFP that the attached as ANNEX "3" of this Affidavit.
AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a 3.3. We undertake to provide result of the
competent court against any members of the investigations conducted or to be conducted
AFP: by the concerned unit relative to the
circumstances of the alleged disappearance of
(1) to verify the identity of the aggrieved party; the persons in whose favor the Writ of Amparo
has been sought for as soon as the same has
(2) to recover and preserve evidence related been furnished Higher headquarters.
to the death or disappearance of the person
identified in the petition which may aid in the 3.4. A parallel investigation has been directed
prosecution of the person or persons to the same units relative to another Petition
responsible; for the Writ of Amparo (G.R. No. 179994) filed
at the instance of relatives of a certain
(3) to identify witnesses and obtain statements Cadapan and Empeño pending before the
from them concerning the death or Supreme Court.
3.5. On the part of the Armed Forces, this
(4) to determine the cause, manner, location respondent will exert earnest efforts to
and time of death or disappearance as well as establish the surrounding circumstances of the
disappearances of the petitioners and to bring

those responsible, including any military Herein petitioners presented a lone witness in
personnel if shown to have participated or had the summary hearings, Lt. Col. Ruben U.
complicity in the commission of the Jimenez, Provost Marshall, 7th Infantry
complained acts, to the bar of justice, when Division, Philippine Army, based in Fort
warranted by the findings and the competent Magsaysay, Palayan City, Nueva Ecija. The
evidence that may be gathered in the territorial jurisdiction of this Division covers
process.50 Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of
Also attached to the Return of the Writ was the Pangasinan.53 The 24th Infantry Battalion is
affidavit of Lt. Col. Felipe Anontado, INF part of the 7th Infantry Division.54
(GSC) PA, earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving On May 26, 2006, Lt. Col. Jimenez was
Cadapan, Empeño and Merino, which averred directed by the Commanding General of the
among others, viz: 7th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of
10) Upon reading the allegations in the Staff,56 to investigate the alleged abduction of
Petition implicating the 24th Infantry Batallion the respondents by CAFGU auxiliaries under
detachment as detention area, I immediately his unit, namely: CAA Michael de la Cruz; CAA
went to the 24th IB detachment in Limay, Roman de la Cruz, aka Puti; CAA Maximo de
Bataan and found no untoward incidents in the la Cruz, aka Pula; CAA Randy Mendoza; ex-
area nor any detainees by the name of Sherlyn CAA Marcelo de la Cruz aka Madning; and a
Cadapan, Karen Empeño and Manuel Merino civilian named Rudy Mendoza. He was
being held captive; directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo
11) There was neither any reports of any death by the alleged elements of the CAFGU
of Manuel Merino in the 24th IB in Limay, auxiliaries; and (2) the administrative liability of
Bataan; said auxiliaries, if any.57 Jimenez testified that
this particular investigation was initiated not by
12) After going to the 24th IB in Limay, Bataan, a complaint as was the usual procedure, but
we made further inquiries with the Philippine because the Commanding General saw news
National Police, Limay, Bataan regarding the about the abduction of the Manalo brothers on
alleged detentions or deaths and were the television, and he was concerned about
informed that none was reported to their good what was happening within his territorial
office; jurisdiction.58

13) I also directed Company Commander 1st Jimenez summoned all six implicated persons
Lt. Romeo Publico to inquire into the alleged for the purpose of having them execute sworn
beachhouse in Iba, Zambales also alleged to statements and conducting an investigation on
be a detention place where Sherlyn Cadapan, May 29, 2006.59 The investigation started at
Karen Empeño and Manuel Merino were 8:00 in the morning and finished at 10:00 in the
detained. As per the inquiry, however, no such evening.60 The investigating officer, Technical
beachhouse was used as a detention place Sgt. Eduardo Lingad, took the individual sworn
found to have been used by armed men to statements of all six persons on that day.
detain Cadapan, Empeño and Merino.51 There were no other sworn statements taken,
not even of the Manalo family, nor were there
It was explained in the Return of the Writ that other witnesses summoned and
for lack of sufficient time, the affidavits of Maj. investigated61 as according to Jimenez, the
Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal directive to him was only to investigate the six
Hilario aka Rollie Castillo, and other persons persons.62
implicated by therein petitioners could not be
secured in time for the submission of the Jimenez was beside Lingad when the latter
Return and would be subsequently took the statements.63 The six persons were
submitted.52 not known to Jimenez as it was in fact his first
time to meet them.64 During the entire time
that he was beside Lingad, a subordinate of

his in the Office of the Provost Marshall, and that they claimed that those who abducted
Jimenez did not propound a single question to the Manalo brothers are members of the
the six persons.65 Military and CAFGU. Subject vehemently
denied any participation or involvement on the
Jimenez testified that all six statements were abduction of said victims.
taken on May 29, 2006, but Marcelo Mendoza
and Rudy Mendoza had to come back the next b) Sworn statement of CAA Roman dela Cruz
day to sign their statements as the printing of y Faustino Aka Puti dtd 29 May 2006 in
their statements was interrupted by a power (Exhibit "C") states that he is a resident of Sitio
failure. Jimenez testified that the two signed on Muzon, Brgy. Buhol na Mangga, San
May 30, 2006, but the jurats of their Ildefonso, Bulacan and a CAA member based
statements indicated that they were signed on at Biak na Bato Detachment, San Miguel,
May 29, 2006.66 When the Sworn Statements Bulacan. He claims that Raymond and
were turned over to Jimenez, he personally Reynaldo Manalo being his neighbors are
wrote his investigation report. He began active members/sympathizers of the
writing it in the afternoon of May 30, 2006 and CPP/NPA and he also knows their elder
finished it on June 1, 2006.67 He then gave his Rolando Manalo @ KA BESTRE of being an
report to the Office of the Chief of NPA Leader operating in their province. That
Personnel.68 at the time of the alleged abduction of the two
(2) brothers and for accusing him to be one of
As petitioners largely rely on Jimenez's the suspects, he claims that on February 14,
Investigation Report dated June 1, 2006 for 2006, he was one of those working at the
their evidence, the report is herein concrete chapel being constructed nearby his
substantially quoted: residence. He claims further that he just came
only to know about the incident on other day
III. BACKGROUND OF THE CASE (15 Feb 06) when he was being informed by
Kagawad Pablo Kunanan. That subject CAA
4. This pertains to the abduction of RAYMOND vehemently denied any participation about the
MANALO and REYNALDO MANALO who incident and claimed that they only implicated
were forcibly taken from their respective him because he is a member of the CAFGU.
homes in Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on 14 February 2006 by c) Sworn Statement of CAA Randy Mendoza y
unidentified armed men and thereafter were Lingas dated 29 May 2006 in (Exhibit "O")
forcibly disappeared. After the said incident, states that he is a resident of Brgy. Buhol na
relatives of the victims filed a case for Mangga, San Ildefonso, Bulacan and a
Abduction in the civil court against the herein member of CAFGU based at Biak na Bato
suspects: Michael dela Cruz, Madning dela Detachment. That being a neighbor, he was
Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy very much aware about the background of the
Mendoza and Rudy Mendoza as alleged two (2) brothers Raymond and Reynaldo as
members of the Citizen Armed Forces active supporters of the CPP NPA in their
Geographical Unit (CAFGU). Brgy. and he also knew their elder brother
"KUMANDER BESTRE" TN: Rolando Manalo.
a) Sworn statement of CAA Maximo F. dela Being one of the accused, he claims that on 14
Cruz, aka Pula dated 29 May 2006 in (Exhibit February 2006, he was at Brgy. Magmarate,
"B") states that he was at Sitio Mozon, Brgy. San Miguel, Bulacan in the house of his aunt
Bohol na Mangga, San Ildefonso, Bulacan and he learned only about the incident when
doing the concrete building of a church located he arrived home in their place. He claims
nearby his residence, together with some further that the only reason why they
neighbor thereat. He claims that on 15 implicated him was due to the fact that his
February 2006, he was being informed by mother has filed a criminal charge against their
Brgy. Kagawad Pablo Umayan about the brother Rolando Manalo @ KA BESTRE who
abduction of the brothers Raymond and is an NPA Commander who killed his father
Reynaldo Manalo. As to the allegation that he and for that reason they implicated him in
was one of the suspects, he claims that they support of their brother. Subject CAA
only implicated him because he was a CAFGU

vehemently denied any involvement on the Bulacan, the Chief of Brgy. Tanod and a
abduction of said Manalo brothers. CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims
d) Sworn Statement of Rudy Mendoza y that he knew very well the brothers Raymond
Lingasa dated May 29, 2006 in (Exhibit "E") and Reynaldo Manalo in their barangay for
states that he is a resident of Brgy. Marungko, having been the Tanod Chief for twenty (20)
Angat, Bulacan. He claims that Raymond and years. He alleged further that they are active
Reynaldo Manalo are familiar to him being his supporters or sympathizers of the CPP/NPA
barriomate when he was still unmarried and he and whose elder brother Rolando Manalo @
knew them since childhood. Being one of the KA BESTRE is an NPA leader operating within
accused, he claims that on 14 February 2006, the area. Being one of the accused, he claims
he was at his residence in Brgy. Marungko, that on 14 Feb 2006 he was helping in the
Angat, Bulacan. He claims that he was being construction of their concrete chapel in their
informed only about the incident lately and he place and he learned only about the incident
was not aware of any reason why the two (2) which is the abduction of Raymond and
brothers were being abducted by alleged Reynaldo Manalo when one of the Brgy.
members of the military and CAFGU. The only Kagawad in the person of Pablo Cunanan
reason he knows why they implicated him was informed him about the matter. He claims
because there are those people who are angry further that he is truly innocent of the allegation
with their family particularly victims of against him as being one of the abductors and
summary execution (killing) done by their he considers everything fabricated in order to
brother @ KA Bestre Rolando Manalo who is destroy his name that remains loyal to his
an NPA leader. He claims further that it was service to the government as a CAA member.
their brother @ KA BESTRE who killed his
father and he was living witness to that IV. DISCUSSION
incident. Subject civilian vehemently denied
any involvement on the abduction of the 5. Based on the foregoing statements of
Manalo brothers. respondents in this particular case, the proof
of linking them to the alleged abduction and
e) Sworn statement of Ex-CAA Marcelo dala disappearance of Raymond and Reynaldo
Cruz dated 29 May 2006 in (Exhibit "F") states Manalo that transpired on 14 February 2006 at
that he is a resident of Sitio Muzon, Brgy. Sitio Muzon, Brgy. Buhol na Mangga, San
Buhol na Mangga, San Ildefonso, Bulacan, a Ildefonso, Bulacan, is unsubstantiated. Their
farmer and a former CAA based at Biak na alleged involvement theretofore to that
Bato, San Miguel, Bulacan. He claims that incident is considered doubtful, hence, no
Raymond and Reynaldo Manalo are familiar to basis to indict them as charged in this
him being their barrio mate. He claims further investigation.
that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA Though there are previous grudges between
BESTRE is an NPA leader. Being one of the each families (sic) in the past to quote: the
accused, he claims that on 14 February 2006, killing of the father of Randy and Rudy
he was in his residence at Sitio Muzon, Brgy. Mendoza by @ KA BESTRE TN: Rolando
Buhol na Mangga, San Ildefonso, Bulacan. Manalo, this will not suffice to establish a fact
That he vehemently denied any participation that they were the ones who did the abduction
of the alleged abduction of the two (2) brothers as a form of revenge. As it was also stated in
and learned only about the incident when the testimony of other accused claiming that
rumors reached him by his barrio mates. He the Manalos are active
claims that his implication is merely fabricated sympathizers/supporters of the CPP/NPA, this
because of his relationship to Roman and would not also mean, however, that in the first
Maximo who are his brothers. place, they were in connivance with the
abductors. Being their neighbors and as
f) Sworn statement of Michael dela Cruz y members of CAFGU's, they ought to be
Faustino dated 29 May 2006 in (Exhibit "G") vigilant in protecting their village from any
states that he is a resident of Sitio Muzon, intervention by the leftist group, hence inside
Brgy. Buhol na Mangga, San Ildefonso, their village, they were fully aware of the

activities of Raymond and Reynaldo Manalo in FILE WITH THE COURT; (B) CONFIRM IN
so far as their connection with the CPP/NPA is WRITING THE PRESENT PLACES OF
6. Premises considered surrounding this case ALL MEDICAL REPORTS, RECORDS AND
shows that the alleged charges of abduction CHARTS, AND REPORTS OF ANY
committed by the above named respondents TREATMENT GIVEN OR RECOMMENDED
has not been established in this investigation. AND MEDICINES PRESCRIBED, IF ANY, TO
Hence, it lacks merit to indict them for any THE MANALO BROTHERS, TO INCLUDE A
administrative punishment and/or criminal LIST OF MEDICAL PERSONNEL (MILITARY
liability. It is therefore concluded that they are AND CIVILIAN) WHO ATTENDED TO THEM
innocent of the charge. FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.70
The case at bar is the first decision on the
7. That CAAs Michael F. dela Cruz, Maximo F. application of the Rule on the Writ of Amparo
Dela Cruz, Roman dela Cruz, Randy (Amparo Rule). Let us hearken to its
Mendoza, and two (2) civilians Maximo F. Dela beginning.
Cruz and Rudy L. Mendoza be exonerated
from the case. The adoption of the Amparo Rule surfaced as
a recurring proposition in the
8. Upon approval, this case can be dropped recommendations that resulted from a two-day
and closed.69 National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances
In this appeal under Rule 45, petitioners sponsored by the Court on July 16-17, 2007.
question the appellate court's assessment of The Summit was "envisioned to provide a
the foregoing evidence and assail the broad and fact-based perspective on the issue
December 26, 2007 Decision on the following of extrajudicial killings and enforced
grounds, viz: disappearances,"71 hence "representatives
from all sides of the political and social
I. spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out
THE COURT OF APPEALS SERIOUSLY ways to resolve the crisis.
AND GIVING FULL FAITH AND CREDIT TO On October 24, 2007, the Court promulgated
THE INCREDIBLE, UNCORROBORATED, the Amparo Rule "in light of the prevalence of
CONTRADICTED, AND OBVIOUSLY extralegal killing and enforced
SCRIPTED, REHEARSED AND SELF- disappearances."73 It was an exercise for the
SERVING AFFIDAVIT/TESTIMONY OF first time of the Court's expanded power to
HEREIN RESPONDENT RAYMOND promulgate rules to protect our people's
MANALO. constitutional rights, which made its maiden
appearance in the 1987 Constitution in
II. response to the Filipino experience of the
martial law regime.74 As the Amparo Rule was
THE COURT OF APPEALS SERIOUSLY intended to address the intractable problem of
AND GRIEVOUSLY ERRED IN REQUIRING "extralegal killings" and "enforced
RESPONDENTS (HEREIN PETITIONERS) disappearances," its coverage, in its present
TO: (A) FURNISH TO THE MANALO form, is confined to these two instances or to
BROTHER(S) AND TO THE COURT OF threats thereof. "Extralegal killings" are
APPEALS ALL OFFICIAL AND UNOFFICIAL "killings committed without due process of law,
REPORTS OF THE INVESTIGATION i.e., without legal safeguards or judicial
UNDERTAKEN IN CONNECTION WITH proceedings."75 On the other hand, "enforced
THEIR CASE, EXCEPT THOSE ALREADY IN disappearances" are "attended by the

following characteristics: an arrest, detention

or abduction of a person by a government The writ of Amparo then spread throughout the
official or organized groups or private Western Hemisphere, gradually evolving into
individuals acting with the direct or indirect various forms, in response to the particular
acquiescence of the government; the refusal needs of each country.83 It became, in the
of the State to disclose the fate or words of a justice of the Mexican Federal
whereabouts of the person concerned or a Supreme Court, one piece of Mexico's self-
refusal to acknowledge the deprivation of attributed "task of conveying to the world's
liberty which places such persons outside the legal heritage that institution which, as a shield
protection of law."76 of human dignity, her own painful history
conceived."84 What began as a protection
The writ of Amparo originated in Mexico. against acts or omissions of public authorities
"Amparo" literally means "protection" in in violation of constitutional rights later evolved
Spanish.77 In 1837, de Tocqueville's for several purposes: (1) Amparo libertad for
Democracy in America became available in the protection of personal freedom, equivalent
Mexico and stirred great interest. Its to the habeas corpus writ; (2) Amparo contra
description of the practice of judicial review in leyes for the judicial review of the
the U.S. appealed to many Mexican jurists.78 constitutionality of statutes; (3) Amparo
One of them, Manuel Crescencio Rejón, casacion for the judicial review of the
drafted a constitutional provision for his native constitutionality and legality of a judicial
state, Yucatan,79 which granted judges the decision; (4) Amparo administrativo for the
power to protect all persons in the enjoyment judicial review of administrative actions; and
of their constitutional and legal rights. This (5) Amparo agrario for the protection of
idea was incorporated into the national peasants' rights derived from the agrarian
constitution in 1847, viz: reform process.85

The federal courts shall protect any inhabitant In Latin American countries, except Cuba, the
of the Republic in the exercise and writ of Amparo has been constitutionally
preservation of those rights granted to him by adopted to protect against human rights
this Constitution and by laws enacted pursuant abuses especially committed in countries
hereto, against attacks by the Legislative and under military juntas. In general, these
Executive powers of the federal or state countries adopted an all-encompassing writ to
governments, limiting themselves to granting protect the whole gamut of constitutional
protection in the specific case in litigation, rights, including socio-economic rights.86
making no general declaration concerning the Other countries like Colombia, Chile, Germany
statute or regulation that motivated the and Spain, however, have chosen to limit the
violation.80 protection of the writ of Amparo only to some
constitutional guarantees or fundamental
Since then, the protection has been an rights.87
important part of Mexican constitutionalism.81
If, after hearing, the judge determines that a In the Philippines, while the 1987 Constitution
constitutional right of the petitioner is being does not explicitly provide for the writ of
violated, he orders the official, or the official's Amparo, several of the above Amparo
superiors, to cease the violation and to take protections are guaranteed by our charter. The
the necessary measures to restore the second paragraph of Article VIII, Section 1 of
petitioner to the full enjoyment of the right in the 1987 Constitution, the Grave Abuse
question. Amparo thus combines the Clause, provides for the judicial power "to
principles of judicial review derived from the determine whether or not there has been a
U.S. with the limitations on judicial power grave abuse of discretion amounting to lack or
characteristic of the civil law tradition which excess of jurisdiction on the part of any branch
prevails in Mexico. It enables courts to enforce or instrumentality of the Government." The
the constitution by protecting individual rights Clause accords a similar general protection to
in particular cases, but prevents them from human rights extended by the Amparo contra
using this power to make law for the entire leyes, Amparo casacion, and Amparo
nation.82 administrativo. Amparo libertad is comparable

to the remedy of habeas corpus found in liberty and other basic rights on August 23,
several provisions of the 1987 Constitution.88 2007,93 prior to the promulgation of the
The Clause is an offspring of the U.S. common Amparo Rule. They also sought ancillary
law tradition of judicial review, which finds its remedies including Protective Custody
roots in the 1803 case of Marbury v. Orders, Appointment of Commissioner,
Madison.89 Inspection and Access Orders and other legal
and equitable remedies under Article VIII,
While constitutional rights can be protected Section 5(5) of the 1987 Constitution and Rule
under the Grave Abuse Clause through 135, Section 6 of the Rules of Court. When the
remedies of injunction or prohibition under Amparo Rule came into effect on October 24,
Rule 65 of the Rules of Court and a petition for 2007, they moved to have their petition treated
habeas corpus under Rule 102,90 these as an Amparo petition as it would be more
remedies may not be adequate to address the effective and suitable to the circumstances of
pestering problem of extralegal killings and the Manalo brothers' enforced disappearance.
enforced disappearances. However, with the The Court granted their motion.
swiftness required to resolve a petition for a
writ of Amparo through summary proceedings With this backdrop, we now come to the
and the availability of appropriate interim and arguments of the petitioner. Petitioners' first
permanent reliefs under the Amparo Rule, this argument in disputing the Decision of the
hybrid writ of the common law and civil law Court of Appeals states, viz:
traditions - borne out of the Latin American and
Philippine experience of human rights abuses The Court of Appeals seriously and grievously
- offers a better remedy to extralegal killings erred in believing and giving full faith and credit
and enforced disappearances and threats to the incredible uncorroborated, contradicted,
thereof. The remedy provides rapid judicial and obviously scripted, rehearsed and self-
relief as it partakes of a summary proceeding serving affidavit/testimony of herein
that requires only substantial evidence to respondent Raymond Manalo.94
make the appropriate reliefs available to the
petitioner; it is not an action to determine In delving into the veracity of the evidence, we
criminal guilt requiring proof beyond need to mine and refine the ore of petitioners'
reasonable doubt, or liability for damages cause of action, to determine whether the
requiring preponderance of evidence, or evidence presented is metal-strong to satisfy
administrative responsibility requiring the degree of proof required.
substantial evidence that will require full and
exhaustive proceedings.91 Section 1 of the Rule on the Writ of Amparo
provides for the following causes of action, viz:
The writ of Amparo serves both preventive and
curative roles in addressing the problem of Section 1. Petition. - The petition for a writ of
extralegal killings and enforced Amparo is a remedy available to any person
disappearances. It is preventive in that it whose right to life, liberty and security is
breaks the expectation of impunity in the violated or threatened with violation by an
commission of these offenses; it is curative in unlawful act or omission of a public official or
that it facilitates the subsequent punishment of employee, or of a private individual or entity.
perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the The writ shall cover extralegal killings and
long run, the goal of both the preventive and enforced disappearances or threats thereof.
curative roles is to deter the further (emphasis supplied)
commission of extralegal killings and enforced
disappearances. Sections 17 and 18, on the other hand, provide
for the degree of proof required, viz:
In the case at bar, respondents initially filed an
action for "Prohibition, Injunction, and Sec. 17. Burden of Proof and Standard of
Temporary Restraining Order"92 to stop Diligence Required. - The parties shall
petitioners and/or their officers and agents establish their claims by substantial evidence.
from depriving the respondents of their right to

xxx xxx xxx pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz,
Sec. 18. Judgment. - ... If the allegations in the Madning de la Cruz, Puti de la Cruz and Pula
petition are proven by substantial evidence, de la Cruz, all members of the CAFGU and
the court shall grant the privilege of the writ residents of Muzon, San Ildefonso, Bulacan,
and such reliefs as may be proper and and the brothers Randy Mendoza and Rudy
appropriate; otherwise, the privilege shall be Mendoza, also CAFGU members, served as
denied. (emphases supplied) lookouts during the abduction. Raymond was
sure that three of the six military men were
Substantial evidence has been defined as Ganata, who headed the abducting team,
such relevant evidence as a reasonable mind Hilario, who drove the van, and George.
might accept as adequate to support a Subsequent incidents of their long captivity, as
conclusion.95 narrated by the petitioners, validated their
assertion of the participation of the elements
After careful perusal of the evidence of the 7th Infantry Division, Philippine Army,
presented, we affirm the findings of the Court and their CAFGU auxiliaries.
of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol We are convinced, too, that the reason for the
na Mangga, San Ildefonso, Bulacan on abduction was the suspicion that the
February 14, 2006 and were continuously petitioners were either members or
detained until they escaped on August 13, sympathizers of the NPA, considering that the
2007. The abduction, detention, torture, and abductors were looking for Ka Bestre, who
escape of the respondents were narrated by turned out to be Rolando, the brother of
respondent Raymond Manalo in a clear and petitioners.
convincing manner. His account is dotted with
countless candid details of respondents' The efforts exerted by the Military Command
harrowing experience and tenacious will to to look into the abduction were, at best, merely
escape, captured through his different senses superficial. The investigation of the Provost
and etched in his memory. A few examples are Marshall of the 7th Infantry Division focused on
the following: "Sumilip ako sa isang haligi ng the one-sided version of the CAFGU
kamalig at nakita kong sinisilaban si auxiliaries involved. This one-sidedness might
Manuel."96 "(N)ilakasan ng mga sundalo ang be due to the fact that the Provost Marshall
tunog na galing sa istiryo ng sasakyan. Di could delve only into the participation of
nagtagal, narinig ko ang hiyaw o ungol ni military personnel, but even then the Provost
Manuel."97 "May naiwang mga bakas ng dugo Marshall should have refrained from outrightly
habang hinihila nila ang mga bangkay. exculpating the CAFGU auxiliaries he
Naamoy ko iyon nang nililinis ang bakas."98 perfunctorily investigated...
"Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga Gen. Palparan's participation in the abduction
kadena."99 "Tinanong ko sa isang kapit-bahay was also established. At the very least, he was
kung paano ako makakakuha ng cell phone; aware of the petitioners' captivity at the hands
sabi ko gusto kong i-text ang isang babae na of men in uniform assigned to his command.
nakatira sa malapit na lugar."100 In fact, he or any other officer tendered no
controversion to the firm claim of Raymond
We affirm the factual findings of the appellate that he (Gen. Palparan) met them in person in
court, largely based on respondent Raymond a safehouse in Bulacan and told them what he
Manalo's affidavit and testimony, viz: wanted them and their parents to do or not to
be doing. Gen. Palparan's direct and personal
...the abduction was perpetrated by armed role in the abduction might not have been
men who were sufficiently identified by the shown but his knowledge of the dire situation
petitioners (herein respondents) to be military of the petitioners during their long captivity at
personnel and CAFGU auxiliaries. Raymond the hands of military personnel under his
recalled that the six armed men who barged command bespoke of his indubitable
into his house through the rear door were command policy that unavoidably encouraged
military men based on their attire of fatigue and not merely tolerated the abduction of

civilians without due process of law and It is clear, therefore, that the participation of
without probable cause. Hilario in the abduction and forced
disappearance of the petitioners was
In the habeas proceedings, the Court, through established. The participation of other military
the Former Special Sixth Division (Justices personnel like Arman, Ganata, Cabalse and
Buzon, chairman; Santiago-Lagman, Sr., Caigas, among others, was similarly
member; and Romilla-Lontok, Jr., established.
member/ponente.) found no clear and
convincing evidence to establish that M/Sgt. xxx xxx xxx
Rizal Hilario had anything to do with the
abduction or the detention. Hilario's As to the CAFGU auxiliaries, the habeas Court
involvement could not, indeed, be then found them personally involved in the
established after Evangeline Francisco, who abduction. We also do, for, indeed, the
allegedly saw Hilario drive the van in which the evidence of their participation is
petitioners were boarded and ferried following overwhelming.101
the abduction, did not testify. (See the decision
of the habeas proceedings at rollo, p. 52) We reject the claim of petitioners that
respondent Raymond Manalo's statements
However, in this case, Raymond attested that were not corroborated by other independent
Hilario drove the white L-300 van in which the and credible pieces of evidence.102
petitioners were brought away from their Raymond's affidavit and testimony were
houses on February 14, 2006. Raymond also corroborated by the affidavit of respondent
attested that Hilario participated in subsequent Reynaldo Manalo. The testimony and medical
incidents during the captivity of the petitioners, reports prepared by forensic specialist Dr.
one of which was when Hilario fetched them Molino, and the pictures of the scars left by the
from Fort Magsaysay on board a Revo and physical injuries inflicted on respondents,103
conveyed them to a detachment in Pinaud, also corroborate respondents' accounts of the
San Ildefonso, Bulacan where they were torture they endured while in detention.
detained for at least a week in a house of Respondent Raymond Manalo's familiarity
strong materials (Exhibit D, rollo, p. 205) and with the facilities in Fort Magsaysay such as
then Hilario (along with Efren) brought them to the "DTU," as shown in his testimony and
Sapang, San Miguel, Bulacan on board the confirmed by Lt. Col. Jimenez to be the
Revo, to an unfinished house inside the "Division Training Unit,"104 firms up
compound of Kapitan where they were kept for respondents' story that they were detained for
more or less three months. (Exhibit D, rollo, p. some time in said military facility.
205) It was there where the petitioners came
face to face with Gen. Palparan. Hilario and In Ortiz v. Guatemala,105 a case decided by
Efren also brought the petitioners one early the Inter-American Commission on Human
morning to the house of the petitioners' Rights, the Commission considered similar
parents, where only Raymond was presented evidence, among others, in finding that
to the parents to relay the message from Gen. complainant Sister Diana Ortiz was abducted
Palparan not to join anymore rallies. On that and tortured by agents of the Guatemalan
occasion, Hilario warned the parents that they government. In this case, Sister Ortiz was
would not again see their sons should they join kidnapped and tortured in early November
any rallies to denounce human rights 1989. The Commission's findings of fact were
violations. (Exhibit D, rollo, pp. 205-206) mostly based on the consistent and credible
Hilario was also among four Master Sergeants statements, written and oral, made by Sister
(the others being Arman, Ganata and Ortiz regarding her ordeal.106 These
Cabalse) with whom Gen. Palparan conversed statements were supported by her recognition
on the occasion when Gen. Palparan required of portions of the route they took when she
Raymond to take the medicines for his health. was being driven out of the military installation
(Exhibit D, rollo, p. 206) There were other where she was detained.107 She was also
occasions when the petitioners saw that examined by a medical doctor whose findings
Hilario had a direct hand in their torture. showed that the 111 circular second degree
burns on her back and abrasions on her cheek

coincided with her account of cigarette burning general coverage of the right to security of
and torture she suffered while in detention.108 person under the writ of Amparo." They submit
that the Court ought to give an expansive
With the secret nature of an enforced recognition of the right to security of person in
disappearance and the torture perpetrated on view of the State Policy under Article II of the
the victim during detention, it logically holds 1987 Constitution which enunciates that, "The
that much of the information and evidence of State values the dignity of every human
the ordeal will come from the victims person and guarantees full respect for human
themselves, and the veracity of their account rights." Finally, to justify a liberal interpretation
will depend on their credibility and candidness of the right to security of person, respondents
in their written and/or oral statements. Their cite the teaching in Moncupa v. Enrile113 that
statements can be corroborated by other "the right to liberty may be made more
evidence such as physical evidence left by the meaningful only if there is no undue restraint
torture they suffered or landmarks they can by the State on the exercise of that liberty"114
identify in the places where they were such as a requirement to "report under
detained. Where powerful military officers are unreasonable restrictions that amounted to a
implicated, the hesitation of witnesses to deprivation of liberty"115 or being put under
surface and testify against them comes as no "monitoring and surveillance."116
In sum, respondents assert that their cause of
We now come to the right of the respondents action consists in the threat to their right to life
to the privilege of the writ of Amparo. There is and liberty, and a violation of their right to
no quarrel that the enforced disappearance of security.
both respondents Raymond and Reynaldo
Manalo has now passed as they have Let us put this right to security under the lens
escaped from captivity and surfaced. But while to determine if it has indeed been violated as
respondents admit that they are no longer in respondents assert. The right to security or the
detention and are physically free, they assert right to security of person finds a textual hook
that they are not "free in every sense of the in Article III, Section 2 of the 1987 Constitution
word"109 as their "movements continue to be which provides, viz:
restricted for fear that people they have named
in their Judicial Affidavits and testified against Sec. 2. The right of the people to be secure in
(in the case of Raymond) are still at large and their persons, houses, papers and effects
have not been held accountable in any way. against unreasonable searches and seizures
These people are directly connected to the of whatever nature and for any purpose shall
Armed Forces of the Philippines and are, thus, be inviolable, and no search warrant or
in a position to threaten respondents' rights to warrant of arrest shall issue except upon
life, liberty and security."110 (emphasis probable cause to be determined personally
supplied) Respondents claim that they are by the judge...
under threat of being once again abducted,
kept captive or even killed, which constitute a At the core of this guarantee is the immunity of
direct violation of their right to security of one's person, including the extensions of
person.111 his/her person - houses, papers, and effects -
against government intrusion. Section 2 not
Elaborating on the "right to security, in only limits the state's power over a person's
general," respondents point out that this right home and possessions, but more importantly,
is "often associated with liberty;" it is also seen protects the privacy and sanctity of the person
as an "expansion of rights based on the himself.117 The purpose of this provision was
prohibition against torture and cruel and enunciated by the Court in People v. CFI of
unusual punishment." Conceding that there is Rizal, Branch IX, Quezon City, viz: 118
no right to security expressly mentioned in
Article III of the 1987 Constitution, they submit The purpose of the constitutional guarantee
that their rights "to be kept free from torture against unreasonable searches and seizures
and from incommunicado detention and is to prevent violations of private security in
solitary detention places112 fall under the person and property and unlawful invasion of

the security of the home by officers of the law human beings shall enjoy freedom of speech
acting under legislative or judicial sanction and and belief and freedom from fear and want has
to give remedy against such usurpation when been proclaimed as the highest aspiration of
attempted. (Adams v. New York, 192 U.S. 858; the common people." (emphasis supplied)
Alvero v. Dizon, 76 Phil. 637 [1946]). The right Some scholars postulate that "freedom from
to privacy is an essential condition to the fear" is not only an aspirational principle, but
dignity and happiness and to the peace and essentially an individual international human
security of every individual, whether it be of right.124 It is the "right to security of person"
home or of persons and correspondence. as the word "security" itself means "freedom
(Tañada and Carreon, Political Law of the from fear."125 Article 3 of the UDHR provides,
Philippines, Vol. 2, 139 [1962]). The viz:
constitutional inviolability of this great
fundamental right against unreasonable Everyone has the right to life, liberty and
searches and seizures must be deemed security of person.126 (emphasis supplied)
absolute as nothing is closer to a man's soul
than the serenity of his privacy and the In furtherance of this right declared in the
assurance of his personal security. Any UDHR, Article 9(1) of the International
interference allowable can only be for the best Covenant on Civil and Political Rights (ICCPR)
causes and reasons.119 (emphases supplied) also provides for the right to security of person,
While the right to life under Article III, Section
1120 guarantees essentially the right to be 1. Everyone has the right to liberty and security
alive121 - upon which the enjoyment of all of person. No one shall be subjected to
other rights is preconditioned - the right to arbitrary arrest or detention. No one shall be
security of person is a guarantee of the secure deprived of his liberty except on such grounds
quality of this life, viz: "The life to which each and in accordance with such procedure as are
person has a right is not a life lived in fear that established by law. (emphasis supplied)
his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life The Philippines is a signatory to both the
lived with the assurance that the government UDHR and the ICCPR.
he established and consented to, will protect
the security of his person and property. The In the context of Section 1 of the Amparo Rule,
ideal of security in life and property... pervades "freedom from fear" is the right and any threat
the whole history of man. It touches every to the rights to life, liberty or security is the
aspect of man's existence."122 In a broad actionable wrong. Fear is a state of mind, a
sense, the right to security of person reaction; threat is a stimulus, a cause of action.
"emanates in a person's legal and Fear caused by the same stimulus can range
uninterrupted enjoyment of his life, his limbs, from being baseless to well-founded as people
his body, his health, and his reputation. It react differently. The degree of fear can vary
includes the right to exist, and the right to from one person to another with the variation
enjoyment of life while existing, and it is of the prolificacy of their imagination, strength
invaded not only by a deprivation of life but of character or past experience with the
also of those things which are necessary to the stimulus. Thus, in the Amparo context, it is
enjoyment of life according to the nature, more correct to say that the "right to security"
temperament, and lawful desires of the is actually the "freedom from threat." Viewed
individual."123 in this light, the "threatened with violation"
Clause in the latter part of Section 1 of the
A closer look at the right to security of person Amparo Rule is a form of violation of the right
would yield various permutations of the to security mentioned in the earlier part of the
exercise of this right. provision.127

First, the right to security of person is "freedom Second, the right to security of person is a
from fear." In its "whereas" clauses, the guarantee of bodily and psychological integrity
Universal Declaration of Human Rights or security. Article III, Section II of the 1987
(UDHR) enunciates that "a world in which Constitution guarantees that, as a general

rule, one's body cannot be searched or authorities had physically abused him in
invaded without a search warrant.128 Physical prison, thereby violating his right to security of
injuries inflicted in the context of extralegal person. Article 5(1) of the European
killings and enforced disappearances Convention on Human Rights provides, viz:
constitute more than a search or invasion of "Everyone has the right to liberty and security
the body. It may constitute dismemberment, of person. No one shall be deprived of his
physical disabilities, and painful physical liberty save in the following cases and in
intrusion. As the degree of physical injury accordance with a procedure prescribed by
increases, the danger to life itself escalates. law ..." (emphases supplied) Article 3, on the
Notably, in criminal law, physical injuries other hand, provides that "(n)o one shall be
constitute a crime against persons because subjected to torture or to inhuman or
they are an affront to the bodily integrity or degrading treatment or punishment." Although
security of a person.129 the application failed on the facts as the
alleged ill-treatment was found baseless, the
Physical torture, force, and violence are a ECHR relied heavily on the concept of security
severe invasion of bodily integrity. When in holding, viz:
employed to vitiate the free will such as to
force the victim to admit, reveal or fabricate ...the applicant did not bring his allegations to
incriminating information, it constitutes an the attention of domestic authorities at the time
invasion of both bodily and psychological when they could reasonably have been
integrity as the dignity of the human person expected to take measures in order to ensure
includes the exercise of free will. Article III, his security and to investigate the
Section 12 of the 1987 Constitution more circumstances in question.
specifically proscribes bodily and
psychological invasion, viz: xxx xxx xxx

(2) No torture, force, violence, threat or ... the authorities failed to ensure his security
intimidation, or any other means which vitiate in custody or to comply with the procedural
the free will shall be used against him (any obligation under Art.3 to conduct an effective
person under investigation for the commission investigation into his allegations.131
of an offense). Secret detention places, (emphasis supplied)
solitary, incommunicado or other similar forms
of detention are prohibited. The U.N. Committee on the Elimination of
Discrimination against Women has also made
Parenthetically, under this provision, threat a statement that the protection of the bodily
and intimidation that vitiate the free will - integrity of women may also be related to the
although not involving invasion of bodily right to security and liberty, viz:
integrity - nevertheless constitute a violation of
the right to security in the sense of "freedom ...gender-based violence which impairs or
from threat" as afore-discussed. nullifies the enjoyment by women of human
rights and fundamental freedoms under
Article III, Section 12 guarantees freedom from general international law or under specific
dehumanizing abuses of persons under human rights conventions is discrimination
investigation for the commission of an offense. within the meaning of article 1 of the
Victims of enforced disappearances who are Convention (on the Elimination of All Forms of
not even under such investigation should all Discrimination Against Women). These rights
the more be protected from these and freedoms include . . . the right to liberty
degradations. and security of person.132

An overture to an interpretation of the right to Third, the right to security of person is a

security of person as a right against torture guarantee of protection of one's rights by the
was made by the European Court of Human government. In the context of the writ of
Rights (ECHR) in the recent case of Popov v. Amparo, this right is built into the guarantees
Russia.130 In this case, the claimant, who was of the right to life and liberty under Article III,
lawfully detained, alleged that the state Section 1 of the 1987 Constitution and the right

to security of person (as freedom from threat The first sentence of article 9 does not stand
and guarantee of bodily and psychological as a separate paragraph. Its location as a part
integrity) under Article III, Section 2. The right of paragraph one could lead to the view that
to security of person in this third sense is a the right to security arises only in the context
corollary of the policy that the State of arrest and detention. The travaux
"guarantees full respect for human rights" préparatoires indicate that the discussions of
under Article II, Section 11 of the 1987 the first sentence did indeed focus on matters
Constitution.133 As the government is the dealt with in the other provisions of article 9.
chief guarantor of order and security, the The Universal Declaration of Human Rights, in
Constitutional guarantee of the rights to life, article 3, refers to the right to life, the right to
liberty and security of person is rendered liberty and the right to security of the person.
ineffective if government does not afford These elements have been dealt with in
protection to these rights especially when they separate clauses in the Covenant. Although in
are under threat. Protection includes the Covenant the only reference to the right of
conducting effective investigations, security of person is to be found in article 9,
organization of the government apparatus to there is no evidence that it was intended to
extend protection to victims of extralegal narrow the concept of the right to security only
killings or enforced disappearances (or threats to situations of formal deprivation of liberty. At
thereof) and/or their families, and bringing the same time, States parties have undertaken
offenders to the bar of justice. The Inter- to guarantee the rights enshrined in the
American Court of Human Rights stressed the Covenant. It cannot be the case that, as a
importance of investigation in the Velasquez matter of law, States can ignore known threats
Rodriguez Case,134 viz: to the life of persons under their jurisdiction,
just because that he or she is not arrested or
(The duty to investigate) must be undertaken otherwise detained. States parties are under
in a serious manner and not as a mere an obligation to take reasonable and
formality preordained to be ineffective. An appropriate measures to protect them. An
investigation must have an objective and be interpretation of article 9 which would allow a
assumed by the State as its own legal duty, not State party to ignore threats to the personal
as a step taken by private interests that security of non-detained persons within its
depends upon the initiative of the victim or his jurisdiction would render totally ineffective the
family or upon their offer of proof, without an guarantees of the Covenant.139 (emphasis
effective search for the truth by the supplied)
The Paez ruling was reiterated in Bwalya v.
This third sense of the right to security of Zambia,140 which involved a political activist
person as a guarantee of government and prisoner of conscience who continued to
protection has been interpreted by the United be intimidated, harassed, and restricted in his
Nations' Human Rights Committee136 in not a movements following his release from
few cases involving Article 9137 of the ICCPR. detention. In a catena of cases, the ruling of
While the right to security of person appears in the Committee was of a similar import:
conjunction with the right to liberty under Bahamonde v. Equatorial Guinea,141
Article 9, the Committee has ruled that the involving discrimination, intimidation and
right to security of person can exist persecution of opponents of the ruling party in
independently of the right to liberty. In other that state; Tshishimbi v. Zaire,142 involving
words, there need not necessarily be a the abduction of the complainant's husband
deprivation of liberty for the right to security of who was a supporter of democratic reform in
person to be invoked. In Delgado Paez v. Zaire; Dias v. Angola,143 involving the murder
Colombia,138 a case involving death threats of the complainant's partner and the
to a religion teacher at a secondary school in harassment he (complainant) suffered
Leticia, Colombia, whose social views differed because of his investigation of the murder; and
from those of the Apostolic Prefect of Leticia, Chongwe v. Zambia,144 involving an
the Committee held, viz: assassination attempt on the chairman of an
opposition alliance.

Similarly, the European Court of Human This time, respondents have finally escaped.
Rights (ECHR) has interpreted the "right to The condition of the threat to be killed has
security" not only as prohibiting the State from come to pass. It should be stressed that they
arbitrarily depriving liberty, but imposing a are now free from captivity not because they
positive duty on the State to afford protection were released by virtue of a lawful order or
of the right to liberty.145 The ECHR voluntarily freed by their abductors. It ought to
interpreted the "right to security of person" be recalled that towards the end of their
under Article 5(1) of the European Convention ordeal, sometime in June 2007 when
of Human Rights in the leading case on respondents were detained in a camp in
disappearance of persons, Kurt v. Turkey.146 Limay, Bataan, respondents' captors even told
In this case, the claimant's son had been them that they were still deciding whether they
arrested by state authorities and had not been should be executed. Respondent Raymond
seen since. The family's requests for Manalo attested in his affidavit, viz:
information and investigation regarding his
whereabouts proved futile. The claimant Kinaumagahan, naka-kadena pa kami.
suggested that this was a violation of her son's Tinanggal ang mga kadena mga 3 o 4 na araw
right to security of person. The ECHR ruled, pagkalipas. Sinabi sa amin na kaya kami
viz: nakakadena ay dahil pinagdedesisyunan pa
ng mga sundalo kung papatayin kami o
... any deprivation of liberty must not only have hindi.148
been effected in conformity with the
substantive and procedural rules of national The possibility of respondents being executed
law but must equally be in keeping with the stared them in the eye while they were in
very purpose of Article 5, namely to protect the detention. With their escape, this continuing
individual from arbitrariness... Having threat to their life is apparent, moreso now that
assumed control over that individual it is they have surfaced and implicated specific
incumbent on the authorities to account for his officers in the military not only in their own
or her whereabouts. For this reason, Article 5 abduction and torture, but also in those of
must be seen as requiring the authorities to other persons known to have disappeared
take effective measures to safeguard against such as Sherlyn Cadapan, Karen Empeño,
the risk of disappearance and to conduct a and Manuel Merino, among others.
prompt effective investigation into an arguable
claim that a person has been taken into Understandably, since their escape,
custody and has not been seen since.147 respondents have been under concealment
(emphasis supplied) and protection by private citizens because of
the threat to their life, liberty and security. The
Applying the foregoing concept of the right to threat vitiates their free will as they are forced
security of person to the case at bar, we now to limit their movements or activities.149
determine whether there is a continuing Precisely because respondents are being
violation of respondents' right to security. shielded from the perpetrators of their
abduction, they cannot be expected to show
First, the violation of the right to security as evidence of overt acts of threat such as face-
freedom from threat to respondents' life, liberty to-face intimidation or written threats to their
and security. life, liberty and security. Nonetheless, the
circumstances of respondents' abduction,
While respondents were detained, they were detention, torture and escape reasonably
threatened that if they escaped, their families, support a conclusion that there is an apparent
including them, would be killed. In Raymond's threat that they will again be abducted,
narration, he was tortured and poured with tortured, and this time, even executed. These
gasoline after he was caught the first time he constitute threats to their liberty, security, and
attempted to escape from Fort Magsaysay. A life, actionable through a petition for a writ of
call from a certain "Mam," who wanted to see Amparo.
him before he was killed, spared him.
Next, the violation of the right to security as
protection by the government. Apart from the

failure of military elements to provide policy directive was issued by petitioner

protection to respondents by themselves Secretary of National Defense on October 31,
perpetrating the abduction, detention, and 2007, respondents have not been furnished
torture, they also miserably failed in the results of the investigation which they now
conducting an effective investigation of seek through the instant petition for a writ of
respondents' abduction as revealed by the Amparo.
testimony and investigation report of
petitioners' own witness, Lt. Col. Ruben Under these circumstances, there is
Jimenez, Provost Marshall of the 7th Infantry substantial evidence to warrant the conclusion
Division. that there is a violation of respondents' right to
security as a guarantee of protection by the
The one-day investigation conducted by government.
Jimenez was very limited, superficial, and one-
sided. He merely relied on the Sworn In sum, we conclude that respondents' right to
Statements of the six implicated members of security as "freedom from threat" is violated by
the CAFGU and civilians whom he met in the the apparent threat to their life, liberty and
investigation for the first time. He was present security of person. Their right to security as a
at the investigation when his subordinate guarantee of protection by the government is
Lingad was taking the sworn statements, but likewise violated by the ineffective
he did not propound a single question to investigation and protection on the part of the
ascertain the veracity of their statements or military.
their credibility. He did not call for other
witnesses to test the alibis given by the six Finally, we come to the reliefs granted by the
implicated persons nor for the family or Court of Appeals, which petitioners question.
neighbors of the respondents.
First, that petitioners furnish respondents all
In his affidavit, petitioner Secretary of National official and unofficial reports of the
Defense attested that in a Memorandum investigation undertaken in connection with
Directive dated October 31, 2007, he issued a their case, except those already in file with the
policy directive addressed to the AFP Chief of court.
Staff, that the AFP should adopt rules of action
in the event the writ of Amparo is issued by a Second, that petitioners confirm in writing the
competent court against any members of the present places of official assignment of M/Sgt.
AFP, which should essentially include Hilario aka Rollie Castillo and Donald Caigas.
verification of the identity of the aggrieved
party; recovery and preservation of relevant Third, that petitioners cause to be produced to
evidence; identification of witnesses and the Court of Appeals all medical reports,
securing statements from them; determination records and charts, and reports of any
of the cause, manner, location and time of treatment given or recommended and
death or disappearance; identification and medicines prescribed, if any, to the Manalo
apprehension of the person or persons brothers, to include a list of medical personnel
involved in the death or disappearance; and (military and civilian) who attended to them
bringing of the suspected offenders before a from February 14, 2006 until August 12, 2007.
competent court.150 Petitioner AFP Chief of
Staff also submitted his own affidavit attesting With respect to the first and second reliefs,
that he received the above directive of petitioners argue that the production order
respondent Secretary of National Defense and sought by respondents partakes of the
that acting on this directive, he immediately characteristics of a search warrant. Thus, they
caused to be issued a directive to the units of claim that the requisites for the issuance of a
the AFP for the purpose of establishing the search warrant must be complied with prior to
circumstances of the alleged disappearance the grant of the production order, namely: (1)
and the recent reappearance of the the application must be under oath or
respondents, and undertook to provide results affirmation; (2) the search warrant must
of the investigations to respondents.151 To particularly describe the place to be searched
this day, however, almost a year after the and the things to be seized; (3) there exists

probable cause with one specific offense; and questioned the issuance of the subpoena on
(4) the probable cause must be personally the ground that it violated the search and
determined by the judge after examination seizure clause. The Court struck down the
under oath or affirmation of the complainant argument and held that the subpoena
and the witnesses he may produce.152 In the pertained to a civil procedure that "cannot be
case at bar, however, petitioners point out that identified or confused with unreasonable
other than the bare, self-serving and vague searches prohibited by the Constitution..."
allegations made by respondent Raymond
Manalo in his unverified declaration and Moreover, in his affidavit, petitioner AFP Chief
affidavit, the documents respondents seek to of Staff himself undertook "to provide results of
be produced are only mentioned generally by the investigations conducted or to be
name, with no other supporting details. They conducted by the concerned unit relative to the
also argue that the relevancy of the circumstances of the alleged disappearance of
documents to be produced must be apparent, the persons in whose favor the Writ of Amparo
but this is not true in the present case as the has been sought for as soon as the same has
involvement of petitioners in the abduction has been furnished Higher headquarters."
not been shown.
With respect to the second and third reliefs,
Petitioners' arguments do not hold water. The petitioners assert that the disclosure of the
production order under the Amparo Rule present places of assignment of M/Sgt. Hilario
should not be confused with a search warrant aka Rollie Castillo and Donald Caigas, as well
for law enforcement under Article III, Section 2 as the submission of a list of medical
of the 1987 Constitution. This Constitutional personnel, is irrelevant, improper, immaterial,
provision is a protection of the people from the and unnecessary in the resolution of the
unreasonable intrusion of the government, not petition for a writ of Amparo. They add that it
a protection of the government from the will unnecessarily compromise and jeopardize
demand of the people such as respondents. the exercise of official functions and duties of
military officers and even unwittingly and
Instead, the Amparo production order may be unnecessarily expose them to threat of
likened to the production of documents or personal injury or even death.
things under Section 1, Rule 27 of the Rules of
Civil Procedure which provides in relevant On the contrary, the disclosure of the present
part, viz: places of assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas, whom
Section 1. Motion for production or inspection respondents both directly implicated as
order. perpetrators behind their abduction and
detention, is relevant in ensuring the safety of
Upon motion of any party showing good cause respondents by avoiding their areas of
therefor, the court in which an action is territorial jurisdiction. Such disclosure would
pending may (a) order any party to produce also help ensure that these military officers
and permit the inspection and copying or can be served with notices and court
photographing, by or on behalf of the moving processes in relation to any investigation and
party, of any designated documents, papers, action for violation of the respondents' rights.
books of accounts, letters, photographs, The list of medical personnel is also relevant
objects or tangible things, not privileged, which in securing information to create the medical
constitute or contain evidence material to any history of respondents and make appropriate
matter involved in the action and which are in medical interventions, when applicable and
his possession, custody or control... necessary.

In Material Distributors (Phil.) Inc. v. Judge In blatant violation of our hard-won guarantees
Natividad,153 the respondent judge, under to life, liberty and security, these rights are
authority of Rule 27, issued a subpoena duces snuffed out from victims of extralegal killings
tecum for the production and inspection of and enforced disappearances. The writ of
among others, the books and papers of Amparo is a tool that gives voice to preys of
Material Distributors (Phil.) Inc. The company silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the

petition is DISMISSED. The Decision of the
Court of Appeals dated December 26, 2007 is


G.R. Nos. 184379-80 April 24, 2012 Antecedent Facts

RODOLFO NOEL LOZADA, JR., VIOLETA The instant Petition stems from the alleged
LOZADA and ARTURO LOZADA, corruption scandal precipitated by a
Petitioners, transaction between the Philippine
vs. government, represented by the National
ARROYO, EDUARDO ERMITA, AVELINO Corporation (ZTE), a Chinese manufacturer of
RAZON, ANGEL ATUTUBO and SPO4 telecommunications equipment.3 Former
ROGER VALEROSO,* Respondents. National Economic Development Authority
(NEDA) Secretary Romulo Neri (Sec. Neri)
DECISION sought the services of Lozada as an unofficial
consultant in the ZTE-NBN deal.4 The latter
SERENO, J.: avers that during the course of his
engagement, he discovered several
What the Court decides today has nothing to anomalies in the said transaction involving
do with the substance or merits surrounding certain public officials.5 These events impelled
the aborted deal of the Philippine government the Senate of the Philippines Blue Ribbon
with the National Broadband Network and ZTE Committee (Blue Ribbon Committee) to
Corporation, or any allegation of petitioner conduct an investigation thereon,6 for which it
Rodolfo Noel "June" Lozada, Jr., (Lozada) issued a subpoena directing Lozada to appear
regarding the same. There is only one issue and testify on 30 January 2008.7
that we decide today – whether circumstances
are adequately alleged and proven by On that date, instead of appearing before the
petitioner Lozada to entitle him to the Blue Ribbon Committee, Lozada left the
protection of the writ of amparo. Before us is a country for a purported official trip to London,
Petition for Review on Certiorari of the as announced by then DENR Secretary Lito
Decision dated 12 September 2008 of the Atienza (Sec. Atienza).8 In the Petition,
Court of Appeals (CA), dismissing the Petition Lozada alleged that his failure to appear at the
for the Issuance of a Writ of Amparo.1 scheduled hearing was upon the instructions
of then Executive Assistant Undersecretary
Petitioner Lozada was the former President Manuel Gaite (Usec. Gaite).9 Consequently,
and Chief Executive Officer of the Philippine the Senate issued an Order dated 30 January
Forest Corporation (PFC), a government- 2008: (a) citing Lozada for contempt; (b)
owned- and -controlled corporation under the ordering his arrest and detention; and (c)
Department of Environment and Natural directing the Senate Sergeant-at-Arms to
Resources (DENR).2 Petitioner Violeta implement the Order and make a return
Lozada (Violeta) is his wife, while petitioner thereon.10
Arturo Lozada (Arturo) is his brother.
While overseas, Lozada asked Sec. Atienza
At the time the Petition for the Writ of Amparo whether the former could be allowed to go
was filed, respondent former President Gloria back to the Philippines.11 Upon the approval
Macapagal Arroyo (former President Arroyo) of Sec. Atienza, Lozada informed his family
was the incumbent President of the that he was returning from Hong Kong on 5
Philippines. Meanwhile, Eduardo Ermita (ES February 2008 on board Cathay Pacific Flight
Ermita) was then the Executive Secretary; No. 919, bound to arrive in Manila at 4:40 p.m.
Avelino Razon (Razon), the Director General on the same day.12
of the Philippine National Police (PNP); Angel
Atutubo (Atutubo), the Assistant General In the Petition, Lozada claims that, upon
Manager for Security and Emergency disembarking from the aircraft, several men
Services of the Manila International Airport held his arms and took his bag. Although he
Authority; and Rodolfo Valeroso (Valeroso), allegedly insisted on meeting with his family,
an agent of the Aviation Security Group (ASG) he later realized that it was wiser to just follow
of the PNP. them, especially when he overheard from their

handheld radio: "[H]wag kayong dumaan Lozada (Carmen).25 He observed that the
diyan sir nandyan ang mga taga senado."13 perimeter was guarded by policemen,
purportedly restraining his liberty and
Lozada asked if he could go to the comfort threatening not only his security, but also that
room, an opportunity he used to call up his of his family and the De La Salle brothers.26
brother, petitioner Arturo, and inform him of his
situation.14 The men thereafter led him On 6 February 2008, at around 10:00 a.m.,
through the departure area of the airport and Col. Mascarinas supposedly brought Lozada
into a car waiting for them.15 They made him to the office of Atty. Bautista to finalize and
sit alone at the back of the vehicle, while a sign an affidavit.27
man, whom he later discovered to be
respondent Valeroso, took the passenger seat At about 1:00 p.m., Violeta filed before this
and was always in contact with other Court a Petition for Habeas Corpus, docketed
individuals.16 Lozada observed that other as G.R. No. 181342 (the Habeas Corpus
cars tailed their vehicle.17 case).28 Arturo likewise filed before this Court
a Petition for a Writ of Amparo, docketed as
Sec. Atienza then phoned Lozada, assuring G.R. No. 181356 (the Amparo case), and
the latter that he was with people from the prayed for the issuance of (a) the writ of
government, and that the former was going to amparo; (b) a Temporary Protection Order
confer with "ES and Ma’[a]m." Lozada (TPO); and (c) Inspection and Production
surmised that these individuals referred to ES Orders as regards documents related to the
Ermita and former President Arroyo, authority ordering custody over Lozada, as
respectively.18 Sec. Atienza also purportedly well as any other document that would show
instructed Lozada to pacify his wife, petitioner responsibility for his alleged abduction.29
Violeta, who was making public statements
asking for her husband’s return.19 At around the same time that Arturo filed the
Petition for a Writ of Amparo, Col. Mascarinas
The vehicle traversed the South Luzon drove Lozada back to La Salle Green Hills.30
Expressway and drove towards the direction Lozada was then made to sign a typewritten,
of Laguna.20 Along the way, the men asked antedated letter requesting police
Lozada to draft an antedated letter requesting protection.31 Thereafter, former Presidential
police protection.21 Spokesperson Michael Defensor (Sec.
Defensor) supposedly came and requested
Lozada requested that he be brought home to Lozada to refute reports that the latter was
Pasig, but the men were allegedly compelled kidnapped and to deny knowledge of alleged
to deny his request on account of unidentified anomalies in the NBN-ZTE deal. Sec.
security risks.22 Eventually, however, the Defensor then purportedly gave Lozada
vehicle turned around and drove to Libis, ₱50,000 for the latter’s expenses.32
Quezon City. The group stopped at The
Outback restaurant to meet with certain On 7 February 2008, Lozada decided to hold
individuals, who turned out to be Atty. Antonio a press conference and contact the Senate
Bautista (Atty. Bautista) and Colonel Paul Sergeant-at-Arms, who served the warrant of
Mascarinas (Col. Mascarinas) of the Police arrest on him.33 Lozada claimed that after his
Special Protection Office (PSPO). At the press conference and testimony in the Senate,
restaurant, Lozada claimed that he was made he and his family were since then harassed,
to fill in the blanks of a prepared affidavit.23 stalked and threatened.34

After the meeting, the men informed Lozada On the same day, this Court issued a
that they were going to billet him in a hotel for Resolution (a) consolidating the Habeas
a night, but he suggested that they take him to Corpus case and the Amparo case; (b)
La Salle Green Hills instead. The men requiring respondents in the Habeas Corpus
acquiesced.24 case to comment on the Petition; (c) issuing a
Writ of Amparo; (d) ordering respondents in
Upon arriving in La Salle Green Hills, Lozada the Amparo case to file their verified Return;
was met by Violeta and his sister, Carmen (e) referring the consolidated Petitions to the

CA; and (f) directing the CA to set the cases Issuance of Subpoena on the ground that the
for hearing on 14 February 2008.35 alleged acts and statements attributed to Sec.
Accordingly, the court a quo set both cases for Neri and Benjamin Abalos (Abalos) were
hearing on 14 February 2008.36 irrelevant to the Amparo case, and that to
require them to testify would only result in a
On 12 February 2008, respondents filed fishing expedition.48 The CA likewise denied
before the CA a Manifestation and Motion, Arturo’s subsequent Motion for
praying for the dismissal of the Habeas Corpus Reconsideration.49
case.37 They asserted that Lozada was never
illegally deprived of his liberty and was, at that In its Resolution dated 5 March 2008, the CA
time, no longer in their custody. They likewise dropped former President Arroyo as a
averred that, beginning 8 February 2008, respondent on the ground that at the time the
Lozada had already been under the Petition in the Amparo case was filed, she was
supervision of the Senate and, from then on, still the incumbent President enjoying
had been testifying before it.38 immunity from suit.50 Arturo filed a Motion for
Reconsideration,51 which the CA denied in its
In their verified Return, respondents claimed Resolution dated 25 March 2008.52
that Sec. Atienza had arranged for the
provision of a security team to be assigned to On 12 September 2008, the CA rendered its
Lozada, who was then fearful for his safety.39 Decision denying petitioners the privilege of
In effect, respondents asserted that Lozada the Writ of Amparo and dismissing the
had knowledge and control of the events that Petition.53 The CA found that petitioners were
took place on 5 February 2008, voluntarily unable to prove through substantial evidence
entrusted himself to their company, and was that respondents violated, or threatened with
never deprived of his liberty. Hence, violation, the right to life, liberty and security of
respondents prayed for the denial of the Lozada.
interim reliefs and the dismissal of the
Petition.40 Petitioners thus filed the instant Petition,
praying for: (a) the reversal of the assailed CA
During the initial hearing on 14 February 2008, Decision; (b) the issuance of the TPO; and (c)
Lozada and Violeta ratified the Petition in the the accreditation of the Association of Major
Amparo case41 to comply with Section 2 of the Religious Superiors of the Philippines and the
Rule on the Writ of Amparo,42 which imposes De La Salle Brothers as the sanctuaries of
an order to be followed by those who can sue Lozada and his family.54 In the alternative,
for the writ.43 The CA also dismissed the petitioners pray that this Court remand the
Habeas Corpus case in open court for being case to the CA for further hearings and reverse
moot and academic, as Lozada was physically the latter’s Orders: (a) denying the Motion to
present and was not confined or detained by Issue a Subpoena Ad Testificandum and (b)
any of the respondents.44 Considering that dropping former President Arroyo as a
petitioners failed to question the dismissal of respondent. Petitioners raise the following
the Habeas Corpus case, the said dismissal issues:
had lapsed into finality, leaving only the
Amparo case open for disposition. (1) Whether the Court a [q]uo erred in ruling to
dismiss the petition for a writ of amparo and
Thereafter, Lozada filed a Motion for deny Petitioners’ prayer for a Temporary
Temporary Protection Order and Production of Protection Order, inter alia, because there is
Documents,45 while Arturo filed a Motion for no substantial evidence to prove that the right
Production of Documents.46 Additionally, to life, liberty or security of Jun Lozada was
Arturo also filed a Motion for the Issuance of violated or threatened with violation. This rule
Subpoena Ad Testificandum and Presentation is not in accord with the rule on the writ of
of Hostile Witnesses and Adverse Parties amparo and Supreme Court jurisprudence on
Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo substantial evidence[.]
Valeroso, "Jaime" the Driver and Other
Respondents. Respondents opposed these (2) Whether the Ponencia erred and gravely
motions.47 The CA denied the Motion for the abused its discretion by prematurely ruling that

the testimony of witnesses which Petitioners irrelevant, given that the relevancy of evidence
sought to present and who are subject of the must be examined after it is offered, and not
Motion for Issuance of Subpoena ad before.60 Finally, petitioners contend that the
testificandum were irrelevant to the Petition for presidential immunity from suit cannot be
a Writ of Amparo in a way not in accord with invoked in amparo actions.61
the Rules of Court and Supreme Court
decisions. Issues

(3) Whether the Court a quo erred in using and In ruling on whether the CA committed
considering the affidavits of respondents in reversible error in issuing its assailed
coming up with the questioned decision when Decision, three issues must be discussed:
these were not offered as evidence and were
not subjected to cross-examination. This ruling I. Whether the CA committed an error in
is not in accord with the Rules of Court and dropping former President Arroyo as a
jurisprudence. respondent in the Amparo case.

(4) Whether the Court a [q]uo erred in dropping II. Whether the CA committed an error in
as respondent Pres. Gloria Arroyo despite her denying petitioners’ Motion for the Issuance of
failure to submit a verified return and a Subpoena Ad Testificandum.
personally claim presidential immunity in a
way not in accord with the Rule on the Writ of III. Whether petitioners should be granted the
Amparo.55 privilege of the writ of amparo.

The Office of the Solicitor General (OSG) Discussion

asserts that petitioners failed to adduce
substantial evidence, as the allegations they The writ of amparo is an independent and
propounded in support of their Petition were summary remedy that provides rapid judicial
largely hearsay.56 The OSG also maintains relief to protect the people’s right to life, liberty
that it was proper for the CA to have dropped and security.62 Having been originally
former President Arroyo as respondent on intended as a response to the alarming cases
account of her presidential immunity from of extrajudicial killings and enforced
suit.57 disappearances in the country, it serves both
preventive and curative roles to address the
Respondent Atutubo also alleges, among said human rights violations. It is preventive in
others, that: (a) Lozada voluntarily asked for that it breaks the expectation of impunity in the
security and protection; (b) Lozada willingly commission of these offenses, and it is
submitted himself to the company of the police curative in that it facilitates the subsequent
escorts; (c) Atutubo merely accompanied him punishment of perpetrators by inevitably
to pass through the contingency route leading to subsequent investigation and
customarily provided to VIP passengers, action.63
public figures, foreign dignitaries, and the like;
and (d) Atutubo only performed his job to As it stands, the writ of amparo is confined only
ensure security and maintain order at the to cases of extrajudicial killings and enforced
airport upon the arrival of Lozada.58 disappearances, or to threats thereof.64
Considering that this remedy is aimed at
In the face of these assertions by respondents, addressing these serious violations of or
petitioners nevertheless insist that while they threats to the right to life, liberty and security,
have sufficiently established that Lozada was it cannot be issued on amorphous and
taken against his will and was put under uncertain grounds,65 or in cases where the
restraint, respondents have failed to discharge alleged threat has ceased and is no longer
their own burden to prove that they exercised imminent or continuing.66 Instead, it must be
extraordinary diligence as public officials.59 granted judiciously so as not to dilute the
Petitioners also maintain that it was erroneous extraordinary and remedial character of the
for the CA to have denied their motion for writ, thus:
subpoena ad testificandum for being

The privilege of the writ of amparo is the evidence adduced by petitioners reveals
envisioned basically to protect and guarantee their failure to sufficiently establish any
the rights to life, liberty, and security of unlawful act or omission on her part that
persons, free from fears and threats that vitiate violated, or threatened with violation, the right
the quality of this life. It is an extraordinary writ to life, liberty and security of Lozada. Except
conceptualized and adopted in light of and in for the bare claims that: (a) Sec. Atienza
response to the prevalence of extra-legal mentioned a certain "Ma’[a]m,"70 whom
killings and enforced disappearances. Lozada speculated to have referred to her,
Accordingly, the remedy ought to be resorted and (b) Sec. Defensor told Lozada that "the
to and granted judiciously, lest the ideal President was ‘hurting’ from all the media
sought by the Amparo Rule be diluted and frenzy,"71 there is nothing in the records that
undermined by the indiscriminate filing of would sufficiently establish the link of former
amparo petitions for purposes less than the President Arroyo to the events that transpired
desire to secure amparo reliefs and protection on 5-6 February 2010, as well as to the
and/or on the basis of unsubstantiated subsequent threats that Lozada and his family
allegations.67 (Emphasis supplied.) purportedly received.

Using this perspective as the working Second issue: Denial of the issuance of a
framework for evaluating the assailed CA subpoena ad testificandum
decision and the evidence adduced by the
parties, this Court denies the Petition. This Court, in Roco v. Contreras,72 ruled that
for a subpoena to issue, it must first appear
First issue: Presidential immunity from suit that the person or documents sought to be
presented are prima facie relevant to the issue
It is settled in jurisprudence that the President subject of the controversy, to wit:
enjoys immunity from suit during his or her
tenure of office or actual incumbency.68 A subpoena is a process directed to a person
Conversely, this presidential privilege of requiring him to attend and to testify at the
immunity cannot be invoked by a non-sitting hearing or trial of an action or at any
president even for acts committed during his investigation conducted under the laws of the
or her tenure.69 Philippines, or for the taking of his deposition.

In the case at bar, the events that gave rise to In this jurisdiction, there are two (2) kinds of
the present action, as well as the filing of the subpoena, to wit: subpoena ad testificandum
original Petition and the issuance of the CA and subpoena duces tecum. The first is used
Decision, occurred during the incumbency of to compel a person to testify, while the second
former President Arroyo. In that respect, it was is used to compel the production of books,
proper for the court a quo to have dropped her records, things or documents therein
as a respondent on account of her presidential specified. As characterized in H.C. Liebenow
immunity from suit. vs. The Philippine Vegetable Oil Company:

It must be underscored, however, that since The subpoena duces tecum is, in all respects,
her tenure of office has already ended, former like the ordinary subpoena ad testificandum
President Arroyo can no longer invoke the with the exception that it concludes with an
privilege of presidential immunity as a defense injunction that the witness shall bring with him
to evade judicial determination of her and produce at the examination the books,
responsibility or accountability for the alleged documents, or things described in the
violation or threatened violation of the right to subpoena.
life, liberty and security of Lozada.
Well-settled is the rule that before a subpoena
Nonetheless, examining the merits of the case duces tecum may issue, the court must first be
still results in the denial of the Petition on the satisfied that the following requisites are
issue of former President Arroyo’s alleged present: (1) the books, documents or other
responsibility or accountability. A thorough things requested must appear prima facie
examination of the allegations postulated and relevant to the issue subject of the controversy

(test of relevancy); and (2) such books must there was an unlawful act or omission on the
be reasonably described by the parties to be part of respondents that violated the right to
readily identified (test of definiteness).73 life, liberty and security of Lozada. Thus, the
(Emphasis supplied.) CA did not commit any reversible error in
denying the Motion for the Issuance of
In the present case, the CA correctly denied Subpoena Ad Testificandum.
petitioners’ Motion for the Issuance of
Subpoena Ad Testificandum on the ground Third issue: Grant of the privilege of the writ of
that the testimonies of the witnesses sought to amparo
be presented during trial were prima facie
irrelevant to the issues of the case. The court A. Alleged violation of or threat to the right to
a quo aptly ruled in this manner: life, liberty and security of Lozada

The alleged acts and statements attributed by Sections 17 and 18 of the Rule on the Writ of
the petitioner to Neri and Abalos are not Amparo requires the parties to establish their
relevant to the instant Amparo Petition where claims by substantial evidence,75 or such
the issue involved is whether or not Lozada’s relevant evidence as a reasonable mind might
right to life, liberty and security was threatened accept as adequate to support a conclusion.76
or continues to be threatened with violation by The use of this evidentiary threshold reveals
the unlawful act/s of the respondents. the clear intent of the framers of the Rule on
Evidence, to be relevant, must have such a the Writ of Amparo to have the equivalent of
relation to the fact in issue as to induce belief an administrative proceeding, albeit judicially
in its existence or nonexistence. Further, Neri, conducted, in addressing amparo
Abalos and a certain driver "Jaime" are not situations.77
respondents in this Amparo Petition and the
vague allegations averred in the Motion with In cases where the violation of the right to life,
respect to them do not pass the test of liberty or security has already ceased, it is
relevancy. To Our mind, petitioner appears to necessary for the petitioner in an amparo
be embarking on a "fishing expedition". action to prove the existence of a continuing
Petitioner should present the aggrieved party threat.78 Thus, this Court held in its Resolution
[Lozada], who has been regularly attending in Razon v. Tagitis:79
the hearings, to prove the allegations in the
Amparo Petition, instead of dragging the Manalo is different from Tagitis in terms of their
names of other people into the picture. We factual settings, as enforced disappearance
have repeatedly reminded the parties, in the was no longer a problem in that case. The
course of the proceedings, that the instant enforced disappearance of the brothers
Amparo Petition does not involve the Raymond and Reynaldo Manalo effectively
investigation of the ZTE-[NBN] contract. ended when they escaped from captivity and
Petitioner should focus on the fact in issue and surfaced, while Tagitis is still nowhere to be
not embroil this Court into said ZTE-NBN found and remains missing more than two
contract, which is now being investigated by years after his reported disappearance. An
the Senate Blue Ribbon Committee and the Amparo situation subsisted in Manalo,
Office of the Ombudsman.74 (Emphasis however, because of the continuing threat to
supplied.) the brothers’ right to security; the brothers
claimed that since the persons responsible for
All the references of petitioners to either Sec. their enforced disappearance were still at
Neri or Abalos were solely with respect to the large and had not been held accountable, the
ZTE-NBN deal, and not to the events that former were still under the threat of being once
transpired on 5-6 February 2008, or to the again abducted, kept captive or even killed,
ensuing threats that petitioners purportedly which threat constituted a direct violation of
received. Although the present action is rooted their right to security of person.80 (Emphasis
from the involvement of Lozada in the said supplied.)
government transaction, the testimonies of
Sec. Neri or Abalos are nevertheless not prima In the present case, the totality of the evidence
facie relevant to the main issue of whether adduced by petitioners failed to meet the

threshold of substantial evidence. Sifting the airport was to help him avoid the Senate
through all the evidence and allegations contingent, who would arrest and detain him at
presented, the crux of the case boils down to the Office of the Senate Sergeant-at-Arms,
assessing the veracity and credibility of the until such time that he would appear and give
parties’ diverging claims as to what actually his testimony, pursuant to the Order of the
transpired on 5-6 February 2008. In this Senate on the NBN-ZTE Project. [Lozada]
regard, this Court is in agreement with the clearly knew this because at that time, it was
factual findings of the CA to the extent that still his decision not to testify before the
Lozada was not illegally deprived of his liberty Senate. He agreed with that plan.82
from the point when he disembarked from the (Emphases supplied.)
aircraft up to the time he was led to the
departure area of the airport,81 as he The foregoing statements show that Lozada
voluntarily submitted himself to the custody of personally sought the help of Sec. Atienza to
respondents: avoid the Senate personnel, and thus knew
that the men who met him at the airport were
[Lozada] was one of the first few passengers there to aid him in such objective. Surely, the
to get off the plane because he was instructed actions of Lozada evinced knowledge and
by Secretary Atienza, th[r]ough a phone call voluntariness, uncharacteristic of someone
on the night of 04 February 2008, while he was who claims to have been forcibly abducted.
still in Hong Kong, to proceed directly to the
Bureau of Immigration so that few people However, these men’s subsequent acts of
would notice him and he could be facilitated in directing Lozada to board the vehicle and
going out of the airport without any hassle from driving him around, without disclosing the
the people of the Senate Sergeant-at-Arms. exact purpose thereof, appear to be beyond
Again, [Lozada] stated that he wanted to get what he had consented to and requested from
away from the Senate people. [Lozada] even Sec. Atienza. These men neither informed him
went to the men’s room of the airport, after he of where he was being transported nor
was allegedly "grabbed", where he made a call provided him complete liberty to contact his
to his brother Arturo, using his Globe phone, family members to assure them of his safety.
and he was not prevented from making said These acts demonstrated that he lacked
call, and was simply advised by the person absolute control over the situation, as well as
who met him at the tube to (sic) "sir, bilisan mo an effective capacity to challenge their
na". When they proceeded out of the tube and instructions.
while walking, [Lozada] heard from the radio
track down, "wag kayo dyan, sir, nandyan Nevertheless, it must be emphasized that if
yong mga taga Senado", so they took a detour Lozada had in fact been illegally restrained, so
and went up to the departure area, did not go much so that his right to liberty and security
out of the normal arrival area, and proceeded had been violated, the acts that manifested
towards the elevator near the Duty Free Shop this restraint had already ceased and has
and then down towards the tarmac. Since consequently rendered the grant of the
[Lozada] was avoiding the people from the privilege of the writ of amparo moot. Whether
Office of the Senate Sergeant-at-Arms, said or not Lozada was deprived of his liberty from
detour appears to explain why they did not get the point when he was led inside the vehicle
out at the arrival area, where [Lozada] could waiting for him at the airport up to the time he
have passed through immigration so that his was taken to La Salle Green Hills, petitioners’
passport could be properly stamped. assertions that Lozada and his family continue
to suffer various threats from respondents
This Court does not find any evidence on remain unproven. The CA correctly found as
record that [Lozada] struggled or made an follows:
outcry for help when he was allegedly
"grabbed" or "abducted" at the airport. The supposed announcement of General
[Lozada] even testified that nobody held him, Razon over the radio that [Lozada] was in the
and they were not hostile to him nor shouted custody of the PNP can neither be construed
at him. With noon day clarity, this Court finds as a threat to [Lozada’s] life, liberty and
that the reason why [Lozada] was fetched at security. Certainly, no person in his right mind

would make that kind of media announcement his life, liberty and security. xxx However,
if his intent was indeed to threaten somebody’s [Lozada] himself testified that he does not
life, liberty and security. know whether the respondents or any of the
respondents ordered the filing of these cases
xxx xxx xxx against him. In any event, said purported
cases are to be determined based on their own
He claims that he is threatened by the alleged merits and are clearly beyond the realm of the
presence of armed men riding in motorcycle instant amparo petition filed against the
passing outside the De La Salle premises respondents.83 (Emphasis supplied.)
where he and his family are staying and by
alleged threats of armed men around him at Finally, petitioners insist that while they were
places where he went to. Again, these alleged able to sufficiently establish their case by the
threats were not proven by any evidence at all, required evidentiary standard, respondents
as having originated from any of the failed to discharge their burden to prove their
respondents. defenses by substantial evidence and to show
that respondents exercised extraordinary
[Lozada] also considers the installation of the diligence as required by the Rule on the Writ
surveillance camera at the De La Salle and at of Amparo.84 This Court has squarely passed
St. Scholastica as indirect threat to his right to upon this contention in Yano v. Sanchez,85 to
life, liberty and security. He claims that these wit:
are spy cameras. However, save for
[Lozada’s] self-serving claim, he simply failed The failure to establish that the public official
to prove that they were installed or ordered observed extraordinary diligence in the
installed by the respondents for the purpose of performance of duty does not result in the
threatening his right to life, liberty and security. automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
[Lozada] further maintains that there is an establishing his or her claim by substantial
alleged trend, i.e., wherever he goes, there is evidence.
a bomb threat. There were bomb threats in the
places where he went to like in [the Thus, in amparo actions, petitioners must
Polytechnic University of the Philippines], establish their claims by substantial evidence,
Dagupan, Cebu and Bohol. However, and they cannot merely rely on the supposed
[Lozada] himself testified that he did not try to failure of respondents to prove either their
ascertain where the bomb threats emanated. defenses or their exercise of extraordinary
Plainly, there is no evidence on record that the diligence. In this case, the totality of the
bomb threats were made by the respondents evidence presented by petitioners fails to meet
or done upon their instigation. the requisite evidentiary threshold, and the
privilege of the writ of amparo has already
Moreover, [Lozada] views the pronouncement been rendered moot and academic by the
of the Secretary of Justice that he was put on cessation of the restraint to Lozada’s liberty.
the watch list of the Bureau of Immigration as
a threat to his life, liberty and security. This B. Propriety of the privilege of the writ of
alleged threat is again unsupported by amparo and its interim reliefs
evidence, as in fact, [Lozada] testified that he
did not ascertain from the Bureau of As previously discussed, there is no basis to
Immigration whether his name was actually in grant Lozada the privilege of the writ of
the official watch list of the Bureau. At any rate, amparo, considering that the illegal restraint
the Secretary of Justice is not one of the alleged in this case had already ceased and
respondents in the amparo petition, and there there is no imminent or continuing restriction
is no showing in the record that it was the on his liberty. In Castillo v. Cruz,86 this Court
respondents who ordered the same for the held as follows:
purpose of threatening him.
Although respondents’ release from
[Lozada] harps on the filing of alleged frivolous confinement does not necessarily hinder
cases against him and his family as threat to supplication for the writ of amparo, absent any

evidence or even an allegation in the petition kidnapping and detention incidents and their
that there is undue and continuing restraint on superiors at the top. Yet, the acts and/or
their liberty, and/or that there exists threat or omissions subject of the criminal complaint
intimidation that destroys the efficacy of their and the amparo petition are so linked as to call
right to be secure in their persons, the for the consolidation of both proceedings to
issuance of the writ cannot be justified. obviate the mischief inherent in a multiplicity-
(Emphasis supplied.)1âwphi1 of-suits situation.

Further, it appears that Lozada had already Given the above perspective and to fully apply
filed before the Department of Justice (DOJ) a the beneficial nature of the writ of amparo as
Complaint charging respondents with an inexpensive and effective tool to protect
kidnapping and attempted murder, docketed certain rights violated or threatened to be
as I.S. No. 2008-467.87 In this regard, this violated, the Court hereby adjusts to a degree
Court’s ruling in Rubrico v. Arroyo88 is worth the literal application of Secs. 22 and 23 of the
considering: Amparo Rule to fittingly address the situation
obtaining under the premises. Towards this
First, a criminal complaint for kidnapping and, end, two things are at once indicated: (1) the
alternatively, for arbitrary detention rooted in consolidation of the probe and fact-finding
the same acts and incidents leading to the aspects of the instant petition with the
filing of the subject amparo petition has been investigation of the criminal complaint before
instituted with the OMB, docketed as OMB-P- the OMB; and (2) the incorporation in the same
C-O7-0602-E. The usual initial steps to criminal complaint of the allegations in this
determine the existence of a prima facie case petition bearing on the threats to the right to
against the five (5) impleaded individuals security. Withal, the OMB should be furnished
suspected to be actually involved in the copies of the investigation reports to aid that
detention of Lourdes have been set in motion. body in its own investigation and eventual
It must be pointed out, though, that the filing of resolution of OMB-P-C-O7-0602-E. Then, too,
the OMB complaint came before the effectivity the OMB shall be given easy access to all
of the Amparo Rule on October 24, 2007. pertinent documents and evidence, if any,
adduced before the CA. Necessarily, Lourdes,
Second, Sec. 22 of the Amparo Rule as complainant in OMB-P-C-O7-0602-E,
proscribes the filing of an amparo petition should be allowed, if so minded, to amend her
should a criminal action have, in the basic criminal complaint if the consolidation of
meanwhile, been commenced. The cases is to be fully effective. (Emphasis
succeeding Sec. 23, on the other hand, supplied.)
provides that when the criminal suit is filed
subsequent to a petition for amparo, the Thus, if the Complaint filed before the DOJ had
petition shall be consolidated with the criminal already progressed into a criminal case, then
action where the Amparo Rule shall the latter action can more adequately dispose
nonetheless govern the disposition of the relief of the allegations made by petitioners. After all,
under the Rule. Under the terms of said Sec. one of the ultimate objectives of the writ of
22, the present petition ought to have been amparo as a curative remedy is to facilitate the
dismissed at the outset. But as things stand, subsequent punishment of perpetrators.89 On
the outright dismissal of the petition by force of the other hand, if there is no actual criminal
that section is no longer technically feasible in case lodged before the courts, then the denial
light of the interplay of the following factual of the Petition is without prejudice to the filing
mix: (1) the Court has, pursuant to Sec. 6 of of the appropriate administrative, civil or
the Rule, already issued ex parte the writ of criminal case, if applicable, against those
amparo; (2) the CA, after a summary hearing, individuals whom Lozada deems to have
has dismissed the petition, but not on the basis unduly restrained his liberty.
of Sec. 22; and (3) the complaint in OMB-P-C-
O7-0602-E named as respondents only those Finally, with respect to the interim reliefs
believed to be the actual abductors of sought by petitioners, this Court, in Yano v.
Lourdes, while the instant petition impleaded, Sanchez,90 declined to grant the prayer for
in addition, those tasked to investigate the the issuance of a TPO, as well as Inspection

and Production Orders, upon a finding that the

implicated public officials were not
accountable for the disappearance subject of
that case. Analogously, it would be
incongruous to grant herein petitioners’ prayer
for a TPO and Inspection and Production
Orders and at the same time rule that there no
longer exists any imminent or continuing threat
to Lozada’s right to life, liberty and security.
Thus, there is no basis on which a prayer for
the issuance of these interim reliefs can be

WHEREFORE, the instant petition is DENIED

for being moot and academic. The Court of
Appeals’ denial of the privilege of the writ of
amparo is hereby AFFIRMED.


G.R. No. 184467 June 19, 2012 Shortly thereafter, Bong, Lolita and Ben were
in the office of the security department of Asian
EDGARDO NAVIA,1 RUBEN DIO,2 and Land also located in Grand Royale
ANDREW BUISING, Petitioners, Subdivision.10 The supervisor of the security
vs. guards, petitioner Edgardo Navia (Navia), also
VIRGINIA PARDICO, for and in behalf and arrived thereat.
in representation of BENHUR V. PARDICO
Respondent. As to what transpired next, the parties’
respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and
For the protective writ of amparo to issue in Ben to their office because they received a
enforced disappearance cases, allegation and report from a certain Mrs. Emphasis, a
proof that the persons subject thereof are resident of Grand Royale Subdivision, that she
missing are not enough. It must also be shown saw Bong and Ben removing a lamp from a
by the required quantum of proof that their post in said subdivision.11 The reported
disappearance was carried out by, "or with the unauthorized taking of the lamp was relayed
authorization, support or acquiescence of, [the thru radio to petitioners Ruben Dio (Dio) and
government] or a political organization, Andrew Buising (Buising), who both work as
followed by a refusal to acknowledge [the security guards at the Asian Land security
same or] give information on the fate or department. Following their department’s
whereabouts of [said missing] persons."3 standard operating procedure, Dio and
Buising entered the report in their logbook and
This petition for review on certiorari4 filed in proceeded to the house of Mrs. Emphasis. It
relation to Section 19 of A.M. No. 07-9-12-SC5 was there where Dio and Buising were able to
challenges the July 24, 2008 Decision6 of the confirm who the suspects were. They thus
Regional Trial Court (RTC), Branch 20, repaired to the house of Lolita where Bong and
Malolos City which granted the Petition for Writ Ben were staying to invite the two suspects to
of Amparo7 filed by herein respondent against their office. Bong and Ben voluntarily went with
the petitioners. them.

Factual Antecedents At the security office, Dio and Buising

interviewed Bong and Ben. The suspects
On March 31, 2008, at around 8:30 p.m., a admitted that they took the lamp but clarified
vehicle of Asian Land Strategies Corporation8 that they were only transferring it to a post
(Asian Land) arrived at the house of Lolita M. nearer to the house of Lolita.12 Soon, Navia
Lapore (Lolita) located at 7A Lot 9, Block 54, arrived and Buising informed him that the
Grand Royale Subdivision, Barangay Lugam, complainant was not keen in participating in
Malolos City. The arrival of the vehicle the investigation. Since there was no
awakened Lolita’s son, Enrique Lapore complainant, Navia ordered the release of
(Bong), and Benhur Pardico (Ben), who were Bong and Ben. Bong then signed a statement
then both staying in her house. When Lolita to the effect that the guards released him
went out to investigate, she saw two uniformed without inflicting any harm or injury to him.13
guards disembarking from the vehicle. One of His mother Lolita also signed the logbook
them immediately asked Lolita where they below an entry which states that she will never
could find her son Bong. Before Lolita could again harbor or entertain Ben in her house.
answer, the guard saw Bong and told him that Thereafter, Lolita and Bong left the security
he and Ben should go with them to the security office.
office of Asian Land because a complaint was
lodged against them for theft of electric wires Ben was left behind as Navia was still talking
and lamps in the subdivision.9 to him about those who might be involved in
the reported loss of electric wires and lamps
within the subdivision. After a brief discussion

though, Navia allowed Ben to leave. Ben also where their house is located is very dark and
affixed his signature on the logbook to affirm his father had long been asking the
the statements entered by the guards that he administrator of Grand Royale Subdivision to
was released unharmed and without any install a lamp to illumine their area. But since
injury.14 nothing happened, he took it upon himself to
take a lamp from one of the posts in the
Upon Navia’s instructions, Dio and Buising subdivision and transfer it to a post near their
went back to the house of Lolita to make her house. However, the lamp Bong got was no
sign the logbook as witness that they indeed longer working. Thus, he reinstalled it on the
released Ben from their custody. Lolita asked post from which he took it and no longer
Buising to read aloud that entry in the logbook pursued his plan. 22
where she was being asked to sign, to which
Buising obliged. Not contented, Lolita put on Later on, Lolita was instructed to sign an entry
her reading glasses and read the entry in the in the guard’s logbook where she undertook
logbook herself before affixing her signature not to allow Ben to stay in her house
therein. After which, the guards left. anymore.23 Thereafter, Navia again asked
Lolita to sign the logbook. Upon Lolita’s inquiry
Subsequently, petitioners received an as to why she had to sign again, Navia
invitation15 from the Malolos City Police explained that they needed proof that they
Station requesting them to appear thereat on released her son Bong unharmed but that Ben
April 17, 2008 relative to the complaint of had to stay as the latter’s case will be
Virginia Pardico (Virginia) about her missing forwarded to the barangay. Since she has
husband Ben. In compliance with the poor eyesight, Lolita obligingly signed the
invitation, all three petitioners appeared at the logbook without reading it and then left with
Malolos City Police Station. However, since Bong.24 At that juncture, Ben grabbed Bong
Virginia was not present despite having and pleaded not to be left alone. However,
received the same invitation, the meeting was since they were afraid of Navia, Lolita and
reset to April 22, 2008.16 Bong left the security office at once leaving
Ben behind.25
On April 22, 2008, Virginia attended the
investigation. Petitioners informed her that Moments after Lolita and Bong reached their
they released Ben and that they have no house, Buising arrived and asked Lolita to sign
information as to his present whereabouts.17 the logbook again. Lolita asked Buising why
They assured Virginia though that they will she had to sign again when she already twice
cooperate and help in the investigation of her signed the logbook at the headquarters.
missing husband.18 Buising assured her that what she was about
to sign only pertains to Bong’s release. Since
Version of the Respondent it was dark and she has poor eyesight, Lolita
took Buising’s word and signed the logbook
According to respondent, Bong and Ben were without, again, reading what was written in it.
not merely invited. They were unlawfully 26
arrested, shoved into the Asian Land vehicle
and brought to the security office for The following morning, Virginia went to the
investigation. Upon seeing Ben at the security Asian Land security office to visit her husband
office, Navia lividly grumbled "Ikaw na Ben, but only to be told that petitioners had
naman?"19 and slapped him while he was still already released him together with Bong the
seated. Ben begged for mercy, but his pleas night before. She then looked for Ben, asked
were met with a flurry of punches coming from around, and went to the barangay. Since she
Navia hitting him on different parts of his could not still find her husband, Virginia
body.20 Navia then took hold of his gun, reported the matter to the police.
looked at Bong, and said, "Wala kang nakita at
wala kang narinig, papatayin ko na si Ben."21 In the course of the investigation on Ben’s
disappearance, it dawned upon Lolita that
Bong admitted that he and Ben attempted to petitioners took advantage of her poor
take the lamp. He explained that the area eyesight and naivete. They made her sign the

logbook as a witness that they already c) All relevant information in the possession of
released Ben when in truth and in fact she the [petitioners] pertaining to the threat, act or
never witnessed his actual release. The last omission against the aggrieved party.
time she saw Ben was when she left him in
petitioners’ custody at the security office.27 (4) GRANTING, motu proprio, a Temporary
Protection Order prohibiting the [petitioners],
Exasperated with the mysterious or any persons acting for and in their behalf,
disappearance of her husband, Virginia filed a under pain of contempt, from threatening,
Petition for Writ of Amparo28 before the RTC harassing or inflicting any harm to
of Malolos City. Finding the petition sufficient [respondent], his immediate family and any
in form and substance, the amparo court [member] of his household.
issued an Order29 dated June 26, 2008
directing, among others, the issuance of a writ The Branch Sheriff is directed to immediately
of amparo and the production of the body of serve personally on the [petitioners], at their
Ben before it on June 30, 2008. Thus: address indicated in the petition, copies of the
writ as well as this order, together with copies
WHEREFORE, conformably with Section 6 of of the petition and its annexes.30
the Supreme Court Resolution [in] A.M. No.
07-[9]-12-SC, also known as "The Rule On A Writ of Amparo31 was accordingly issued
The Writ Of Amparo", let a writ of amparo be and served on the petitioners on June 27,
issued, as follows: 2008.32 On June 30, 2008, petitioners filed
their Compliance33 praying for the denial of
(1) ORDERING [petitioners] Edgardo Navia, the petition for lack of merit.
Ruben Dio and Andrew Buising of the Asian
Land Security Agency to produce before the A summary hearing was thereafter conducted.
Court the body of aggrieved party Benhur Petitioners presented the testimony of Buising,
Pardico, on Monday, June 30, 2008, at 10:30 while Virginia submitted the sworn
a.m.; statements34 of Lolita and Enrique which the
two affirmed on the witness stand.
(2) ORDERING the holding of a summary
hearing of the petition on the aforementioned Ruling of the Regional Trial Court
date and time, and DIRECTING the
[petitioners] to personally appear thereat; On July 24, 2008, the trial court issued the
challenged Decision35 granting the petition. It
(3) COMMANDING [petitioners] Edgardo disposed as follows:
Navia, Ruben Dio and Andrew Buising to file,
within a non-extendible period of seventy-two WHEREFORE, the Court hereby grants the
(72) hours from service of the writ, a verified privilege of the writ of amparo, and deems it
written return with supporting affidavits which proper and appropriate, as follows:
shall, among other things, contain the
following: (a) To hereby direct the National Bureau of
Investigation (NBI) to immediately conduct a
a) The lawful defenses to show that the deep and thorough investigation of the
[petitioners] did not violate or threaten with [petitioners] Edgardo Navia, Ruben Dio and
violation the right to life, liberty and security of Andrew Buising in connection with the
the aggrieved party, through any act or circumstances surrounding the disappearance
omission; of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents
b) The steps or actions taken by the forming part of the records of this case;
[petitioners] to determine the fate or
whereabouts of the aggrieved party and the (b) To hereby direct the NBI to extend to the
person or persons responsible for the threat, family of [Benhur] Pardico and the witnesses
act or omission; and who testified in this case protection as it may
deem necessary to secure their safety and
security; and

threatened violation of the aggrieved party’s

(c) To hereby direct the Office of the Provincial right to life, liberty and security are clear.
Prosecutor of Bulacan to investigate the Petitioners assert that in the case at bench,
circumstances concerning the legality of the Virginia miserably failed to establish all these.
arrest of [Benhur] Pardico by the [petitioners] First, the petition is wanting on its face as it
in this case, utilizing in the process, as part of failed to state with some degree of specificity
said investigation, the pertinent documents the alleged unlawful act or omission of the
and admissions forming part of the record of petitioners constituting a violation of or a threat
this case, and take whatever course/s of action to Ben’s right to life, liberty and security. And
as may be warranted. second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing;
Furnish immediately copies of this decision to or that petitioners had a hand in his alleged
the NBI, through the Office of Director Nestor disappearance. On the other hand, the entries
Mantaring, and to the Provincial Prosecutor of in the logbook which bear the signatures of
Bulacan. Ben and Lolita are eloquent proof that
petitioners released Ben on March 31, 2008 at
SO ORDERED.36 around 10:30 p.m. Petitioners thus posit that
the trial court erred in issuing the writ and in
Petitioners filed a Motion for holding them responsible for Ben’s
Reconsideration37 which was denied by the disappearance.
trial court in an Order38 dated August 29,
2008. Our Ruling

Hence, this petition raising the following issues Virginia’s Petition for Writ of Amparo is fatally
for our consideration: defective and must perforce be dismissed, but
not for the reasons adverted to by the
4.1. WHETHER X X X THE HONORABLE petitioners.
RULING THAT RESPONDENT IS ENTITLED A.M. No. 07-9-12-SC or The Rule on the Writ
TO THE PRIVILEGE OF THE WRIT OF of Amparo was promulgated to arrest the
AMPARO. rampant extralegal killings and enforced
disappearances in the country. Its purpose is
4.1.1. WHETHER X X X RESPONDENT WAS to provide an expeditious and effective relief
ABLE TO ESTABLISH THAT PETITIONERS "to any person whose right to life, liberty and
HAVE COMMITTED OR ARE COMMITTING security is violated or threatened with violation
ACTS IN VIOLATION OF HER HUSBAND’S by an unlawful act or omission of a public
RIGHT TO LIFE, LIBERTY, OR SECURITY. official or employee, or of a private individual
or entity." 40
SUFFICIENTLY ESTABLISHED THE FACT Here, Ben’s right to life, liberty and security is
OF THE DISAPPEARANCE OF BENHUR firmly settled as the parties do not dispute his
PARDICO. identity as the same person summoned and
questioned at petitioners’ security office on the
4.1.3. WHETHER X X X RESPONDENT WAS night of March 31, 2008. Such uncontroverted
ABLE TO ESTABLISH THAT THE ALLEGED fact ipso facto established Ben’s inherent and
DISAPPEARANCE OF BENHUR PARDICO constitutionally enshrined right to life, liberty
WAS AT THE INSTANCE OF HEREIN and security. Article 641 of the International
PETITIONERS.39 Covenant on Civil and Political Rights42
recognizes every human being’s inherent right
Petitioners’ Arguments to life, while Article 943 thereof ordains that
everyone has the right to liberty and security.
Petitioners essentially assail the sufficiency of The right to life must be protected by law while
the amparo petition. They contend that the writ the right to liberty and security cannot be
of amparo is available only in cases where the impaired except on grounds provided by and
factual and legal bases of the violation or in accordance with law. This overarching

command against deprivation of life, liberty came about after Congress enacted Republic
and security without due process of law is also Act (RA) No. 985148 on December 11, 2009.
embodied in our fundamental law.44 Section 3(g) thereof defines enforced or
involuntary disappearances as follows:
The pivotal question now that confronts us is
whether Ben’s disappearance as alleged in (g) "Enforced or involuntary disappearance of
Virginia’s petition and proved during the persons" means the arrest, detention, or
summary proceedings conducted before the abduction of persons by, or with the
court a quo, falls within the ambit of A.M. No. authorization, support or acquiescence of, a
07-9-12-SC and relevant laws. State or a political organization followed by a
refusal to acknowledge that deprivation of
It does not. Section 1 of A.M. No. 07-9-12-SC freedom or to give information on the fate or
provides: whereabouts of those persons, with the
intention of removing from the protection of the
SECTION 1. Petition. – The petition for a writ law for a prolonged period of time.
of amparo is a remedy available to any person
whose right to life, liberty and security is Then came Rubrico v. Macapagal-Arroyo49
violated or threatened with violation by an where Justice Arturo D. Brion wrote in his
unlawful act or omission of a public official or Separate Opinion that with the enactment of
employee, or of a private individual or entity. RA No. 9851, "the Rule on the Writ of Amparo
is now a procedural law anchored, not only on
The writ shall cover extralegal killings and the constitutional rights to the rights to life,
enforced disappearances or threats thereof. liberty and security, but on a concrete statutory
(Emphasis ours.) definition as well of what an ‘enforced or
involuntary disappearance’ is."50 Therefore,
While Section 1 provides A.M. No. 07-9-12- A.M. No. 07-9-12-SC’s reference to enforced
SC’s coverage, said Rules does not, however, disappearances should be construed to mean
define extralegal killings and enforced the enforced or involuntary disappearance of
disappearances. This omission was persons contemplated in Section 3(g) of RA
intentional as the Committee on Revision of No. 9851. Meaning, in probing enforced
the Rules of Court which drafted A.M. No. 07- disappearance cases, courts should read A.M.
9-12-SC chose to allow it to evolve through No. 07-9-12-SC in relation to RA No. 9851.
time and jurisprudence and through
substantive laws as may be promulgated by From the statutory definition of enforced
Congress.45 Then, the budding jurisprudence disappearance, thus, we can derive the
on amparo blossomed in Razon, Jr. v. following elements that constitute it:
Tagitis46 when this Court defined enforced
disappearances. The Court in that case (a) that there be an arrest, detention,
applied the generally accepted principles of abduction or any form of deprivation of liberty;
international law and adopted the International
Convention for the Protection of All Persons (b) that it be carried out by, or with the
from Enforced Disappearance’s definition of authorization, support or acquiescence of, the
enforced disappearances, as "the arrest, State or a political organization;
detention, abduction or any other form of
deprivation of liberty by agents of the State or (c) that it be followed by the State or political
by persons or groups of persons acting with organization’s refusal to acknowledge or give
the authorization, support or acquiescence of information on the fate or whereabouts of the
the State, followed by a refusal to person subject of the amparo petition; and,
acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the (d) that the intention for such refusal is to
disappeared person, which place such a remove subject person from the protection of
person outside the protection of the law."47 the law for a prolonged period of time.

Not long thereafter, another significant As thus dissected, it is now clear that for the
development affecting A.M. No. 07-9-12-SC protective writ of amparo to issue, allegation

and proof that the persons subject thereof are allegation or proof that the government or its
missing are not enough. It must also be shown agents had a hand in Ben’s disappearance or
and proved by substantial evidence that the that they failed to exercise extraordinary
disappearance was carried out by, or with the diligence in investigating his case, the Court
authorization, support or acquiescence of, the will definitely not hold the government or its
State or a political organization, followed by a agents either as responsible or accountable
refusal to acknowledge the same or give persons.
information on the fate or whereabouts of said
missing persons, with the intention of We are aware that under Section 1 of A.M. No.
removing them from the protection of the law 07-9-12-SC a writ of amparo may lie against a
for a prolonged period of time. Simply put, the private individual or entity. But even if the
petitioner in an amparo case has the burden of person sought to be held accountable or
proving by substantial evidence the responsible in an amparo petition is a private
indispensable element of government individual or entity, still, government
participation. involvement in the disappearance remains an
indispensable element. Here, petitioners are
In the present case, we do not doubt Bong’s mere security guards at Grand Royale
testimony that Navia had a menacing attitude Subdivision in Brgy. Lugam, Malolos City and
towards Ben and that he slapped and inflicted their principal, the Asian Land, is a private
fistic blows upon him. Given the entity. They do not work for the government
circumstances and the pugnacious character and nothing has been presented that would
of Navia at that time, his threatening link or connect them to some covert police,
statement, "Wala kang nakita at wala kang military or governmental operation. As
narinig, papatayin ko na si Ben," cannot be discussed above, to fall within the ambit of
taken lightly. It unambiguously showed his A.M. No. 07-9-12-SC in relation to RA No.
predisposition at that time. In addition, there is 9851, the disappearance must be attended by
nothing on record which would support some governmental involvement. This
petitioners’ assertion that they released Ben hallmark of State participation differentiates an
on the night of March 31, 2008 unscathed from enforced disappearance case from an
their wrath. Lolita sufficiently explained how ordinary case of a missing person.
she was prodded into affixing her signatures in
the logbook without reading the entries WHEREFORE, the July 24, 2008 Decision of
therein. And so far, the information petitioners the Regional Trial Court, Branch 20, Malolos
volunteered are sketchy at best, like the City, is REVERSED and SET ASIDE. The
alleged complaint of Mrs. Emphasis who was Petition for Writ of Amparo filed by Virginia
never identified or presented in court and Pardico is hereby DISMISSED.
whose complaint was never reduced in
writing.1âwphi1 SO ORDERED.

But lest it be overlooked, in an amparo petition,

proof of disappearance alone is not enough. It
is likewise essential to establish that such
disappearance was carried out with the direct
or indirect authorization, support or
acquiescence of the government. This
indispensable element of State participation is
not present in this case. The petition does not
contain any allegation of State complicity, and
none of the evidence presented tend to show
that the government or any of its agents
orchestrated Ben’s disappearance. In fact,
none of its agents, officials, or employees were
impleaded or implicated in Virginia’s amparo
petition whether as responsible or accountable
persons.51 Thus, in the absence of an

G.R. No. 193652 August 5, 2014 a Deed of Voluntary Commitment7 to the

represented by his mother, MA. On November 26, 2009, Marcelino suffered a
CHRISTINA YUSAY CARAM, Petitioner, heart attack and died8 without knowing about
vs. the birth of his son. Thereafter, during the
Atty. MARIJOY D. SEGUI, Atty. SALLY D. wake, Christina disclosed to Marcelino’s family
ESCUTIN, VILMA B. CABRERA, and CELIA that she and the deceased had a son that she
C. YANGCO, Respondents. gave up for adoption due to financial distress
and initial embarrassment. Marcelino’s family
DECISION was taken aback by the revelation and
sympathized with Christina. After the
VILLARAMA, JR., J.: emotional revelation, they vowed to help her
recover and raise the baby.9 On November
Before us is a petition for review on certiorari 27, 2009, the DSWD, through Secretary
under Rule 45 of the 1997 Rules of Civil Esperanza I. Cabral issued a certificate10
Procedure, as amended, and Section 191 of declaring Baby Julian as "Legally Available for
the Rule on the Writ of Amparo2 seeking to set Adoption." A local matching conference was
aside the August 17, 20103 and September 6, held on January 27, 2010 and on February 5,
20104 Orders of the Regional Trial Court 2010, Baby Julian was "matched" with the
(RTC), Branch 106 of Quezon City, in Sp. spouses Vergel and Filomina Medina (Medina
Proc. Case No. Q-10-67604. The RTC had Spouses) of the Kaisahang Bahay
dismissed petitioner’s petition for the issuance Foundation. Supervised trial custody then
ofa writ of amparo which petitioner filed in commenced.11
order for her to regain parental authority and
custody of Julian Yusay Caram (Baby Julian), On May 5, 2010, Christina who had changed
her biological child, from the respondent her mind about the adoption, wrote a letter to
officers of the Department of Social Welfare the DSWDasking for the suspension of Baby
and Development (DSWD). The factual Julian’s adoption proceedings. She alsosaid
antecedents as gleaned from the records she wanted her family back together.12
On May 28, 2010, the DSWD, through
Petitioner Ma. Christina Yusay respondent Atty. Marijoy D. Segui, sent a
Caram(Christina) had an amorous relationship Memorandum13 to DSWD Assistant
with Marcelino Gicano Constantino III Secretary Vilma B. Cabrera informing her that
(Marcelino) and eventually became pregnant the certificate declaring Baby Julian legally
with the latter’s child without the benefit of available for adoption had attained finality on
marriage. After getting pregnant, Christina November 13, 2009, or three months after
mislead Marcelino into believing that she had Christina signed the Deed of Voluntary
an abortion when in fact she proceeded to Commitment which terminated her parental
complete the term of her pregnancy. During authority and effectively made Baby Julian a
this time, she intended to have the child ward of the State. The said Memorandum was
adopted through Sun and Moon Home for noted by respondent Atty. Sally D. Escutin,
Children (Sun and Moon) in Parañaque City to Director IV of the Legal Service, DSWD.
avoid placing her family ina potentially
embarrassing situation for having a second On July 12, 2010, Noel Gicano Constantino,
illegitimate son.5 Marcelino’s brother, sent a letter to Atty.
Escutin informing her that a DNA testing was
On July 26, 2009, Christina gavebirth to Baby scheduled on July 16, 2010 at the DNA
Julian at Amang Rodriguez Memorial Analysis Laboratory at the University of the
MedicalCenter, Marikina City.6 Sun and Moon Philippines.14
shouldered all the hospital and medical
expenses. On August 13, 2009, Christina On July 16, 2010, Assistant Secretary Cabrera
voluntarily surrendered Baby Julian by way of sent a letter15 to Noel Constantino stating that
it would not allow Baby Julian to undergo DNA

testing. Assistant Secretary Cabrera informed improper remedy to avail of in a case relating
Noel Constantino that the procedures followed toa biological parent’s custodial rights over her
relative to the certification on the availability of child.
the child for adoption and the child’s
subsequent placement to prospective On August 4, 2010, respondents appeared
adoptive parents were proper, and that the before the RTC but respondents did not bring
DSWD was no longer in the position to stop the child, stating that threats of kidnapping
the adoption process. Assistant Secretary were made on the child and his caregivers. To
Cabrera further stated that should Christina give respondents another chance, the RTC
wish to reacquire her parental authority over reset the hearing to August 5, 2010.
Baby Julian or halt the adoption process, she
may bring the matter to the regular courts as At the August 5, 2010 hearing, the Office of the
the reglementary period for her to regain her Solicitor General (OSG) entered its
parental rights had already lapsed under appearance as representative of the State and
Section 7 of Republic Act (R.A.) No. 9523.16 prayed that its lawyers be given time to file
their memorandum or position paper in this
On July 27, 2010, Christina filed a petition17 case. In turn, the RTC acknowledged the
for the issuance of a writ of amparo before the appearance of the OSG and allowed its
RTC of Quezon City seeking to obtain custody representatives to actively participate in the
of Baby Julian from Atty. Segui, Atty. Escutin, arguments raised during the said hearing.
Assistant Secretary Cabrera and Acting Relative to the matter of the parties submitting
Secretary Celia C. Yangco, all of the DSWD. additional pleadings, Judge Sale narrowed the
issues to be discussed by providing for the
In her petition, Christina accused respondents following guidelines, thus:
of "blackmailing" her into surrendering custody
of her childto the DSWD utilizing what she To abbreviate the proceedings, in view of all
claims to be an invalid certificate of availability the manifestations and counter-manifestations
for adoption which respondents allegedly used made by the counsels, the court enjoined the
as basis to misrepresent that all legal parties to file their respective position papers
requisites for adoption of the minor child had on the following issues:
been complied with.
1. Whether or not this court has jurisdiction
Christina argued that by making these over the instant case;
misrepresentations, the respondents had
acted beyond the scope of their legal authority 2. Whether or not this petition isthe proper
thereby causing the enforced disappearance remedy based on the facts of the case and
of the said child and depriving her of her prayer in the petition; and
custodial rights and parental authority over
him. 3. Whether or not the prayer in the petition
should be granted and custody of the child be
On the basis of the said petition,the RTC, given to his biological mother.
Branch 106 of Quezon City, through its
Presiding Judge, the Honorable Angelene The parties were given five (5) days from today
Mary W. Quimpo-Sale, issued a Writ of to file their respective position papers based
Amparo18 on July 28, 2010 commanding the on these three main issues. They may include
four respondents to produce the body of Baby other related issues they deem essential for
Julian at a hearing scheduled on August 4, the resolution of this case. Set this case for
2010. Respondents were alsorequired to file further hearing, if necessary, on August 18,
their verified written return to the writ pursuant 2010 at 9:00 a.m.21
to Section 919 of the Amparo Rule, within five
working days from the service of the writ. In the same order, Judge Sale
alsoacknowledged that the child subject of the
The respondents complied with the writ and case was brought before the court and the
filed their Return20 on August 2, 2010 praying petitioner was allowed to see him and take
that the petition be denied for being the photographs of him.

obtaining parental authority and custody of a

On August 17, 2010, the RTC dismissed the minor child. This Court will not belabor to
petition for issuance of a writ of amparo discuss Christina’s argumentsrelating to the
without prejudice to the filing of the appropriate supposedunconstitutionality or R.A. No. 9523
action in court. The RTC held that Christina as Congress has the plenary power to repeal,
availed of the wrong remedy to regain custody alter and modify existing laws29 and A.M. No.
of her child Baby Julian.22 The RTC further 02-6-02-SC functions only as a means to
stated that Christina should have filed a civil enforce the provisions of all adoption and
case for custody of her child as laid down in adoption-related statutes before the courts.
the Family Code and the Rule on Custody of
Minors and Writ of Habeas Corpus in Relation Now, in her petition, Christina argues that the
to Custody of Minors. If there is extreme life, liberty and security of Baby Julian is being
urgency to secure custody of a minor who has violated or threatened by the respondent
been illegallydetained by another, a petition for DSWD officers’ enforcement of an illegal Deed
the issuance of a writ of habeas corpus may of Voluntary Commitment between her and
be availed of, either as a principal or ancillary Sun and Moon. She claims thatshe had been
remedy, pursuant to the Rule on Custody of "blackmailed" through the said Deed by the
Minors and Writ of Habeas Corpus inRelation DSWD officers and Sun and Moon’s
to Custody of Minors.23 representatives into surrendering her child
thereby causing the "forced separation" of the
On August 20, 2010, Christina filed a motion said infant from his mother. Furthermore, she
for reconsideration24 arguing that since the also reiterates that the respondent DSWD
RTC assumed jurisdiction of the petition for the officers acted beyond the scope of their
issuance of a writ of amparo, the latter is duty- authority when they deprived her of Baby
bound to dispose the case on the merits.25 Julian’s custody.30
The RTC, however, deniedChristina’s motion
for reconsideration on September 6, 2010 The Court rejects petitioner’s contentions and
maintaining that the latter availed of the wrong denies the petition.
remedy and that the Supreme Court intended
the writ of amparo to address the problem of Section 1 of the Rule on the Writ of Amparo
extrajudicial killings and enforced provides as follows:
SECTION 1. Petition. – The petition for a writ
On September 28, 2010, Christina directly of amparois a remedy available to any person
elevated the case before this Court, via a whose right to life, liberty and security is
petition for review on certiorari under Rule 45 violated or threatened with violation by an
of the 1997 Rules of Civil Procedure, as unlawful actor omission of a public official or
amended, in relation to Section 19 of the Rule employee, or of a private individual or entity.
on the Writ of Amparo. In her petition, Christina
prayed that the Court (1) set aside the August The writ shall cover extralegal killings and
17, 2010 and September 6, 2010 Orders of the enforced disappearances or threats thereof.
RTC, (2) declare R.A. No. 9523
unconstitutional for being contrary to A.M. No. In the landmark case of Secretary of National
02-6-02-SC,27 which was promulgated by the Defense, et al. v. Manalo, et al.,31 this Court
Supreme Court, and for violating the doctrine held:
of separation of powers, (3) declare the
"enforced separation" between her and Baby [T]he AmparoRule was intended to address
Julian as violative of her rights to life, liberty the intractable problem of "extralegal killings"
and security, and (4) grant her the privilege of and "enforced disappearances," its coverage,
availing the benefits of a writ of amparo so she in its present form, is confined to these two
could be reunited with her son.28 instances or to threats thereof. "Extralegal
killings" are "killings committed without due
The only relevant issue presented before the process of law, i.e., without legal safeguards
Court worthy of attention is whether a petition or judicial proceedings." On the other hand,
for a writ of amparo is the proper recourse for "enforced disappearances" are "attended by

the following characteristics: an arrest, respondent DSWD officers presented Baby

detention or abduction of a person by a Julian before the RTC during the hearing held
government official or organized groupsor in the afternoon of August 5, 2010.36 There is
private individuals acting with the direct or therefore, no "enforced disappearance" as
indirect acquiescence of the government; the used in the context of the Amparo rule as the
refusal of the State to disclose the fate or third and fourth elements are missing.
whereabouts of the person concerned or a
refusal to acknowledge the deprivation of Christina's directly accusing the respondents
liberty which places such persons outside the of forcibly separating her from her child and
protection of law. placing the latter up for adoption, supposedly
without complying with the necessary legal
This pronouncement on the coverage of the requisites to qualify the child for adoption,
writ was further cemented in the latter case of clearly indicates that she is not searching for a
Lozada, Jr. v. Macapagal-Arroyo32 where this lost child but asserting her parental authority
Court explicitly declared that as it stands, the over the child and contesting custody over
writ of amparo is confined only to cases of him.37 Since it is extant from the pleadings
extrajudicial killings and enforced filed that what is involved is the issue of child
disappearances, or to threats thereof. As to custody and the exercise of parental rights
what constitutes "enforced disappearance," over a child, who, for all intents and purposes,
the Court in Navia v. Pardico33 enumerated has been legally considered a ward of the
the elementsconstituting "enforced State, the Amparo rule cannot be properly
disappearances" as the term is statutorily applied.
defined in Section 3(g) of R.A. No. 985134 to
wit: To reiterate, the privilege of the writ of amparo
is a remedy available to victims of extra-
(a) that there be an arrest, detention, judicial killings and enforced disappearances
abduction or any form of deprivation of liberty; or threats of a similar nature, regardless of
whether the perpetrator of the unlawful act or
(b) that it be carried out by, or with the omission is a public official or employee or a
authorization, support or acquiescence of, the private individual. It is envisioned basically to
State ora political organization; protect and guarantee the right to life, liberty
and security of persons, free from fears and
(c) that it be followed by the State or political threats that vitiate the quality of life.
organization’s refusal to acknowledge or give
information on the fate or whereabouts of the WHEREFORE, the petition is DENIED. The
person subject of the amparopetition; and, August 17, 2010 and September 6, 2010
Orders of the Regional Trial Court, Branch
(d) that the intention for such refusal isto 106, Quezon City in Sp. Proc. Case No. Q-10-
remove subject person from the protection of 67604 are AFFIRMED without prejudice to
the law for a prolonged period of time.1âwphi1 petitioner's right to avail of proper legal
remedies afforded to her by law and related
In this case, Christina alleged that the rules.
respondent DSWD officers caused her
"enforced separation" from Baby Julian and No costs.
that their action amounted to an "enforced
disappearance" within the context of the SO ORDERED.
Amparo rule. Contrary to her position,
however, the respondent DSWD officers never
concealed Baby Julian's whereabouts. In fact,
Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 explicitly stating
that Baby Julian was in the custody of the
Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted
in her petition for review on certiorari that the

SPEEDY DISPOSITION OF CASES be set aside for lack of merit, if only to clear
any lingering doubt on the matter.
G.R. Nos. 146368-69 October 18,
2004 Petitioner laments that although the complaint
was filed with the Office of the Deputy
MADELEINE MENDOZA-ONG, petitioner, Ombudsman for the Visayas as early as
vs. December 13, 1994, the informations were
HON. SANDIGANBAYAN and PEOPLE OF filed with the Sandiganbayan only on August
THE PHILIPPINES, respondents. 1, 1997, and the amended informations, on
October 27, 1998. According to her, the delay
RESOLUTION of nearly three years to finish the preliminary
investigation violated her constitutional rights
QUISUMBING, J.: to due process and speedy disposition of
cases. The established facts of this case,
In this Motion for Reconsideration,1 petitioner however, show no such violation.
Madeleine Mendoza-Ong seeks a reversal of
this Court’s October 23, 2003, Resolution The right to speedy disposition of cases, like
dismissing her petition for certiorari and the right to speedy trial, is violated only when
upholding the Sandiganbayan’s denial of her the proceedings are attended by vexatious,
motion to quash. She contends that the Court capricious and oppressive delays.4 In the
erred in: determination of whether said right has been
violated, particular regard must be taken of the
I facts and circumstances peculiar to each
case.5 The conduct of both the prosecution
…holding that the information filed against and the defendant, the length of the delay, the
[her] in Criminal Case No. 23848 has alleged reasons for such delay, the assertion or failure
the essential ingredients of the offense to assert such right by the accused, and the
charged [and in] prejudice caused by the delay are the factors
to consider and balance.6 A mere
II mathematical reckoning of time involved
would not be sufficient.7
…failing to resolve the fundamental issue of
whether the excessive or inordinate delay in In this case, the Graft Investigation Officer
the conduct of the preliminary investigation released his resolution finding probable cause
and filing of the informations after three (3) against petitioner on August 16, 1995, less
years had deprived [her] of her Constitutional than six months from the time petitioner and
and statutory right to due process and speedy her co-accused submitted their counter-
determinations and disposition of the cases affidavits. On October 30, 1995, only two and
against her warranting dismissal thereof.2 a half months later, Ombudsman Aniano
Desierto had reviewed the case and had
Concerning the first ground abovecited, the approved the resolution. Contrary to
Court notes that the motion contains merely a petitioner’s contention, the lapse of only ten
reiteration or rehash of arguments already months from the filing of the complaint on
submitted to the Court and found to be without December 13, 1994, to the approval of the
merit. Petitioner fails to raise any new and resolution on October 30, 1995, is by no
substantial arguments, and no cogent reason means oppressive. "Speedy disposition of
exists to warrant a reconsideration of the cases" is consistent with reasonable delays. 8
Court’s Resolution. It would be a useless ritual The Court takes judicial notice of the fact that
for the Court to reiterate itself.3 the nature of the Office of the Ombudsman
encourages individuals who clamor for
As to the second ground, we find it raises efficient government service to lodge freely
arguments that have already been passed their complaints against alleged wrongdoing of
upon. Reconsideration on that ground may government personnel.9 A steady stream of
also be denied summarily. Nevertheless, we cases reaching the Ombudsman inevitably
shall take time to explain why her motion must results.10 Naturally, disposition of those cases

would take some time. Moreover, petitioner informations then, but petitioner had filed with
herself had contributed to the alleged delay the said office a motion for reassessment of
when she asked for extension of time to file her evidence on June 25, 1996, and a
counter-affidavit. supplemental motion on August 20, 1996.
These motions, which incidentally also failed
That the informations were filed only on to raise the issue of delay, effectively
August 1, 1997, also did not violate petitioner’s suspended the filing of the informations.
constitutional rights. The delay was not without
valid reasons. The Special Prosecutor in Subsequently, the case had to be reassigned
charge of preparing the informations felt a to another Special Prosecutor because the
genuine need to specify in the informations (1) original handling prosecutor was appointed
the value of the five drums of fuel petitioner Resident Ombudsman for the Bureau of
received as gift in violation of the anti-graft law Internal Revenue. Petitioner’s motion for
and (2) the amount of the subsistence reassessment was resolved only on June 27,
allowance of heavy-equipment operators that 1997. The resolution again went up for further
the municipality of Laoang, Northern Samar, review.
paid for when petitioner used heavy
equipment rented by the municipality to Considering the number of times that the case
develop her private property. The had to be reviewed, the levels of review that
recommendation to specify these two amounts the case had to undergo, and petitioner’s own
then had to undergo levels of review and was motions for additional time, the period that
approved by Ombudsman Desierto only on lapsed -- roughly two years and five months
January 29, 1996. Unfortunately, the needed (from the time petitioner and her co-accused
information was not in the records, so the submitted their counter-affidavits on March 29,
Deputy Special Prosecutor sought it from the 1995, to the time the informations were filed on
Office of the Deputy Ombudsman for the August 1, 1997) to terminate the proceedings
Visayas. As that office also did not possess the against petitioner -- could not be considered
needed information, it issued an Order on vexatious, capricious, and oppressive delay.
June 10, 1996, directing petitioner to supply They were necessitated by exigency of the
the needed information. actions taken on the case. The period to
terminate the proceedings, in our view, had not
When petitioner received a copy of the Order, violated petitioner’s constitutionally
however, she sought additional time to comply guaranteed rights to due process and to a
with the Order. She waited for two months speedy disposition of cases.11
before filing on August 23, 1996, a verified
statement supplying none of the information Neither could the delay be said to have been
required of her. She claimed that the five prejudicial to her considering that she herself
drums of fuel were merely donated to her and is guilty of delay.12 The Court has held that if
that she did not know their value. She also the long delay in the termination of the
alleged that it was she and her husband, and preliminary investigation was not solely the
not the government, who spent for the prosecution’s fault, but was also due to
subsistence allowance of the heavy- incidents attributable to the accused and his
equipment operator in the development of her counsel, the right of the accused to speedy
private property. She did not object to the disposition of cases is not violated.13
delay in the termination of the proceedings Petitioner cannot now seek the protection of
against her, nor did she seek at that time to the law to benefit from what she now considers
expedite its resolution. the adverse effects of her own conduct in this
Petitioner’s refusal to supply the information
prompted the handling investigator at the Petitioner’s reliance on the doctrines in Tatad
Office of the Deputy Ombudsman for the v. Sandiganbayan,14 Duterte v.
Visayas to recommend on August 28, 1996, Sandiganbayan,15 and Angchangco, Jr. v.
that the price of the five drums of fuel be Ombudsman16 is misplaced.
estimated instead. Notably, the Office of the
Special Prosecutor could have filed the

In Tatad v. Sandiganbayan, the cases against

petitioner remained dormant for almost three Unlike in the Tatad, Duterte, and Angchangco,
years. In ruling that the long delay violated not Jr., cases where the delays were manifestly
only Tatad’s constitutional right to due process oppressive, the facts of this case do not evince
but also his right to speedy disposition of the vexatious, capricious and oppressive delay in
cases against him, the Court considered three the conduct of the preliminary investigation.
factors. First, political motivation played a vital There appears, therefore, no persuasive much
role in activating and propelling the less compelling reason to grant in this case the
prosecutorial process. Second, there was a same radical relief granted in those three
blatant departure from established procedures cases that petitioner cited.19
prescribed by law for the conduct of a
preliminary investigation. And third, the long WHEREFORE, petitioner’s Motion for
delay in resolving the preliminary investigation Reconsideration is hereby DENIED for lack of
could not be justified on the basis of the merit.
Worth noting, in Duterte v. Sandiganbayan,
petitioners were denied the right to a
preliminary investigation altogether. They
were not served copies of the complaint-
affidavits and were not given the chance to file
counter-affidavits. The Graft Investigator
merely required them to comment on a civil
complaint against them and on a Special Audit
Report of the Commission on Audit, both of
which were not equivalent to the complaint-
affidavits required by the applicable
administrative rules. In fact, the petitioners
were unaware and were never informed that a
preliminary investigation was being conducted
against them. The recommendations in the
COA Special Audit Report were already
accepted even before the report came out,
and the civil complaint had already long been
dismissed before the Graft Investigator
required petitioner’s comment on it.

Additionally, in Duterte, although the

petitioners had filed the manifestation in lieu of
the required comment on February 18, 1992,
it was only on February 22, 1996, or four years
later, that they received the resolution
recommending the filing of informations
against them. Then, also, informations were
filed against petitioners in that case even in the
absence of sufficient ground to hold them
liable for the crime charged.

In Angchangco, Jr. v. Ombudsman, the delay

lasted for six years despite the fact that
Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr.,
even filed a motion to dismiss. Sadly, however,
the Office of the Ombudsman failed to act on
said motion.18

[G.R. No. 108595. May 18, 1999] Ruiz; that the letter "is full of lies and
improbabilities" and "that it is vague."[4]
ELPIDIO C. CERVANTES, petitioner, vs.
THE SANDIGANBAYAN, FIRST DIVISION, On October 16, 1986, petitioner Elpidio C.
THE SPECIAL PROSECUTOR, and PEDRO Cervantes filed with the office of the
ALMENDRAS, respondents. Tanodbayan an affidavit stating that he had
nothing to do with the blank paper that
DECISION Almendras signed, as admitted by the latter in
a confrontation in the presence of National
PARDO, J.: Labor Relations Commission (NLRC) vice
chairman Diego Atienza.[5]
The case before the Court is a special civil
action for certiorari and prohibition with On May 18, 1992, more than six (6) years after
preliminary injunction seeking to annul and set the filing of the initiatory complaint with the
aside the resolution of the Sandiganbayan, Tanodbayan, Special Prosecution Officer II,
First Division,[1] that denied petitioner's Office of the Special Prosecutor Luz L.
motion to quash the information against him Quinones-Marcos filed with the
for violation of Section 3 (e), Republic Act Sandiganbayan, assigned to the First Division,
3019, and to restrain or enjoin the an Information charging petitioner Elpidio C.
Sandiganbayan from proceeding with his Cervantes, together with Teodorico L. Ruiz
arraignment and trial. The motion is based on and Alejandro Tapang with violation of Section
the ground that the filing of the information 3 (e), Republic Act 3019, committed as
against petitioner over six (6) years after the follows:
initial complaint with the Tanodbayan
(predecessor of the Ombudsman) violated his That on or about June 16, 1984, or for
right to speedy disposition of the case, and sometime subsequent thereto, in Manila,
that the acts charged in the information do not Philippines, and within the jurisdiction of this
constitute an offense. Honorable Court, the above-named accused
Teodorico L. Ruiz, a public officer, being then
We grant the petition. a Labor Arbiter, National Labor Relations
Commission, NCR, Department of Labor and
The facts are as follows: Elpidio Cervantes, also a public officer, being
then a Labor Analyst, National Labor Relations
On March 6, 1986, one Pedro Almendras filed Commission, NCR, Department of Labor, in
with the Office of the Tanodbayan the exercise of their official and administrative
(predecessor of the Ombudsman) a sworn functions, conspiring, confederating and
complaint[2] against Alejandro Tapang for conniving with private respondent Alejandro
falsification of complainant's "salaysay" Tapang, did then and there, wilfully, unlawfully
alleging that Alejandro Tapang made and criminally with evident bad faith and
complainant sign a piece of paper in blank on manifest partiality cause undue injury to one
which paper a "salaysay" was later inscribed Pedro Almendras by then and there inducing
stating that complainant had been paid his Pedro Almendras to sign a blank paper, on
claim in the amount of P17,594.00, which was which a statement was later typed and
not true. In the said complaint, Pedro attributed as his (Almendras) statement in
Almendras mentioned that he sought the help which statement Almendras allegedly
of petitioner Elpidio C. Cervantes who worked acknowledged that the whole amount awarded
as analyst in the office of labor arbiter to him by the NLRC in a decision in NCR Case
Teodorico L. Ruiz.[3] No. 10-731-81 had been paid by Alejandro
Tapang and therefore, he is no longer
On October 2, 1986, Alejandro Tapang pursuing any claim against Tapang, thereby
submitted to the Office of the Tanodbayan a giving said Alejandro Tapang unwarranted
counter-affidavit stating that the letter benefits and advantage to the damage and
complaint of Almendras was the subject of a prejudice of Pedro Almendras.
labor case decided by Arbiter Teodorico L.

We resolve to give due course to the petition

On May 28, 1992, petitioner filed a motion for and decide the case.
reconsideration with the Office of the Special
Prosecutor reiterating that he never met The issues raised are (a) whether the acts
complainant Almendras on June 29, 1984, that charged in the information filed against
complainant filed a case before the City Fiscal petitioner for violation of Section 3 (e), R. A.
of Quezon City, claiming that his counsel 3019 do not constitute an offense; and (b)
together with Tapang conspired to deprive him whether the Sandiganbayan acted with grave
of his monetary award and that the case was abuse of discretion in denying his motion to
dismissed.[7] quash for violation of the right to speedy
disposition of the case.
On October 2, 1992, petitioner filed with the
Sandiganbayan, Manila, a "motion to defer We shall first resolve the second issue. We
arraignment due to pendency of find petitioner's contention meritorious. He
reinvestigation or motion to quash and motion was deprived of his right to a speedy
to recall warrant of arrest" on the ground that disposition of the case, a right guaranteed by
(a) petitioner filed with the office of the Special the Constitution.[12] It took the Special
Prosecutor a motion for reinvestigation; (b) Prosecutor (succeeding the Tanodbayan) six
that the case against Cervantes "has (6) years from the filing of the initiatory
prescribed" due to unreasonable delay in the complaint before he decided to file an
resolution of the preliminary investigation, and information for the offense with the
(c) that the acts charged in the information do Sandiganbayan. The letter complaint was filed
not constitute an offense.[8] with the Tanodbayan on March 6, 1986. The
affidavit of the petitioner was filed therein on
On October 2, 1992, the Ombudsman denied October 16, 1986. The Special Prosecutor
petitioners motion for reconsideration,[9] and resolved the case on May 18, 1992. In their
simultaneously filed with the Sandiganbayan comment to the petition at bar,[13] the
an amended information. The amendment Sandiganbayan and the Special Prosecutor try
consisted of the insertion of the total amount to justify the inordinate delay in the resolution
involved.[10] of the complaint by stating that no political
motivation appears to have tainted the
By minute resolution dated December 24, prosecution of the case in apparent reference
1992, the Sandiganbayan denied petitioner's to the case of Tatad vs. Sandiganbayan,
motion, ruling that there was no "unwarranted (footote: 159 SCRA 70, 81-82.) where the
postponement nor any denial by the Court ruled that the long delay (three years) in
Tanodbayan or of the Ombudsman of any step the termination of the preliminary investigation
taken by the accused to accelerate the by the Tanodbayan" was violative of the
disposition on the matter."[11] Constitutional right of speedy disposition of
cases because political motivations played a
Hence, this petition. vital role in activating and propelling the
prosecutorial process in this case.
On February 22, 1993, the Court required
respondents to comment on the petition (not to The Special Prosecutor also cited Alvizo vs.
file a motion to dismiss) within ten (10) days Sandiganbayan (footnote 220 SCRA 55, 64)
from notice, and issued a temporary alleging that, as in Alvizo, the petitioner herein
restraining order enjoining respondent was insensitive to the implications and
Sandiganbayan from continuing with the contingencies thereof by not taking any step
arraignment and trial or from further whatsoever to accelerate the disposition of the
proceeding with Criminal Case No. 17673. On matter.
December 14, 1993, respondents filed their
comment. On March 10, 1994, petitioner filed We cannot accept the Special Prosecutors
a reply to comment. On November 22, 1994, ratiocination. It is the duty of the prosecutor to
respondents filed a rejoinder. speedily resolve the complaint, as mandated
by the Constitution, regardless of whether the
petitioner did not object to the delay or that the

delay was with his acquiescence provided that

it was not due to causes directly attributable to

Consequently, we rule that the

Sandiganbayan gravely abused its discretion
in not quashing the information for violation of
petitioners Constitutional right to the speedy
disposition of the case in the level of the
Special Prosecutor, Office of the

We deem it unnecessary to resolve the first

issue in view of the foregoing ruling.

WHEREFORE, the Court hereby GRANTS the

petition and ANNULS the minute resolution of
the Sandiganbayan, dated December 24,
1992, in Criminal Case No. 17673. The Court
directs the Sandiganbayan to dismiss the
case, with costs de oficio.

The temporary restraining order heretofore

issued is made permanent.

No costs in this instance.


GR No. 218040, Apr 17, 2017 year delay in the proceedings caused him
JUANITO VICTOR C. REMULLA v. undue prejudice.
The Sandiganbayan Ruling
In its February 2, 2015 Resolution, the
MENDOZA, J.: Sandiganbayan found that Maliksi's right to a
speedy disposition of his case was violated.
This is a petition for certiorari seeking to annul Thus, it dismissed the case against him. It
and set aside the February 2, 2015[1] and stated that the explanation provided by the
March 20, 2015[2] Resolutions of the Ombudsman, through the Office of the Special
Sandiganbayan Second Division in Criminal Prosecutor (OSP), was insufficient to justify its
Case No. SB-14-CRM-0432, which dismissed 9-year delay in the resolution of Maliksi's case.
the case filed by Juanito Victor C. Remulla The Sandiganbayan noted that the interval
(Remulla) against respondent Erineo S. was caused by the delay in the routing or
Maliksi (Maliksi) for violation of Section 3 (e) of transmission of the records of the case, which
Republic Act (R.A.) No. 3019 or the Anti-Graft was unacceptable. Citing Coscolluela v.
and Corrupt Practices Act. Sandiganbayan,[8] (Coscolluela), it wrote that
it was inconsequential to determine whether
On August 12, 2005, Remulla filed a criminal an accused had followed up on his case
complaint against Maliksi before the Office of because it was not his duty to do so. The
the Ombudsman (Ombudsman) for violation of Sandiganbayan opined that it was the
Section 3 (e) of R.A. No. 3019. He alleged that Ombudsman's responsibility to expedite the
Maliksi, as governor of Cavite, caused the resolution of the case within a reasonable
purchase of certain medical supplies from time.
Allied Medical Laboratories Corporation in
November 2002 without conducting any public On February 12, 2015, the OSP filed a Motion
bidding, thereby giving unwarranted benefit or for Partial Reconsideration[9] arguing that the
preference to it. On December 15, 2005, delay in the preliminary investigation was
Maliksi filed his counter-affidavit.[3] neither whimsical nor capricious, considering
that Maliksi did not complain on the delay.
The Ombudsman Ruling
In its assailed resolution, dated March 20,
After almost nine (9) years, in a resolution, 2015, the Sandiganbayan denied the motion
dated August 27, 2014, the Ombudsman for partial reconsideration. It reiterated that the
found probable cause against Maliksi for fact-finding of the case, which lasted for three
violation of Section 3 (e) of R.A. No. 3019.[4] (3) years, and the preliminary investigation,
which lasted for six (6) years, were due to
Maliksi filed his motion for reconsideration, mechanical routing and avoidable delay. The
arguing that there was no probable cause and Sandiganbayan found that such delays were
that there was a violation of his right to a unnecessary and unacceptable. It also echoed
speedy disposition of his case.[5] In its order, Coscolluela that it was not the duty of the
dated October 22, 2014, the Ombudsman respondent in a preliminary investigation to
denied the said motion for reconsideration.[6] follow up on the prosecution of his case.

In November 2014, the Ombudsman filed an Hence, this petition.

information for violation of Section 3 (e) of R.A. Issue
No. 3019 against Maliksi before the
Sandiganbayan. Maliksi then filed his Motion WHETHER THE SANDIGANBAYAN
to Dismiss,[7] dated November 20, 2014, COMMITTED GRAVE ABUSE OF
alleging that the finding of probable cause DISCRETION AMOUNTING TO LACK OR
against him was null and void, and that his EXCESS OF JURISDICTION IN DISMISSING
constitutional right to a speedy disposition of THE CRIMINAL CASE AGAINST
his case was violated. According to him, the 9- RESPONDENT.[10]

Remulla argues that the Sandiganbayan case was tainted with grave abuse of
should not have dismissed the case as there discretion.
was a finding of probable cause; that there
was no violation of Maliksi's right to a speedy In its Comment,[19] the Ombudsman, through
disposition of his case because he did not the OSP, argued that Court must provide a
promptly assert his right; that mere definitive ruling on the concept of inordinate
mathematical reckoning of the time involved is delay because the current model was still in a
not sufficient to invoke inordinate delay; that in state of perpetual flux. It opined that
Tilendo v. Ombudsman[11] (Tilendo), there Coscolluela was inapplicable in the present
must be an active assertion of the right to a case as Maliksi was aware of the pending case
speedy disposition of cases before the against him before the Ombudsman. The OSP
Ombudsman; and that Coscolluela is also emphasized that the Sandiganbayan
inapplicable because the petitioner therein merely dismissed the case against Maliksi by
was completely unaware of his pending case. considering the sole factor of length of delay.
It cited the case of Barker v. Wingo,[20] where
In his Comment,[12] Maliksi countered that the the defendant's assertion of, or failure to
petition was defective because it was filed by assert, his right to a speedy trial was one of the
Remulla, a private party. He underscored that factors to be considered in an inquiry whether
only the Office of the Solicitor General (OSG), there was deprivation of such right. The OSP
or, in certain instances, the OSP, may bring or echoed the argument of Remulla that an
defend actions for or on behalf of the Republic accused who does not take any step
of the Philippines. Maliksi also pointed out that whatsoever to accelerate the disposition of the
the delay of nine (9) years in the preliminary case was deemed to have slept on his right
investigation of his case was clearly an and have given acquiesces to the supervening
inordinate delay. He cited the cases of Tatad delays.
v. Tanodbayan[13] and People v.
Sandiganbayan,[14] where even delays of The Court's Ruling
even shorter period of years were considered
violations of the right to speedy disposition of The petition is bereft of merit.
cases. Finally, Maliksi argued that the petition
was a violation of his constitutional right The petition was filed by a private party
against double jeopardy because a dismissal
of criminal case due to the right to speedy Procedural law mandates that all criminal
disposition of a case is tantamount to an actions, commenced by a complaint or an
acquittal. information, shall be prosecuted under the
direction and control, of a public prosecutor. In
In his Reply,[15] Remulla averred that he had appeals of criminal cases before the Court of
the legal standing to file this subject petition as Appeals (CA) and before this Court, the OSG
a taxpayer or a citizen because public funds is the appellate counsel of the People,
were illegally disbursed. He contended that pursuant to Section 35 (l), Chapter 12, Title III,
the length of delay was not the only factor that Book IV of the 1987 Administrative Code.[21]
must be considered in determining inordinate In certain instances, the OSP represented the
delay. Remulla invoked the cases of Guerrero People, when it involved criminal cases within
v. CA[16] (Guerrero), Bernat v. the jurisdiction of the Sandiganbayan.[22]
Sandiganbayan[17] (Bernat) and Tello v.
People[18] (Tello), where the failure of the The present case challenges the dismissal of
accused to assert his right to a speedy a criminal case due to the violation of the right
disposition of his case was deemed a waiver to speedy disposition of cases. The petition
for such right. He pointed out that Maliksi knew filed before this Court was initiated by Remulla
that there was a pending case against him but in his capacity as a private complainant
he never asserted his right to a speedy without the intervention of either the OSG or
disposition of his case during the preliminary the OSP. Although he claims that he has legal
investigation. Finally, Remulla claimed that standing as a taxpayer, the present case is
there was no violation of the right against criminal in nature and the People is the real
double jeopardy as the dismissal of Maliksi's party in interest.[23] Remulla captioned his

petition as "People of the Philippines v. circumstances. These factors have no

Sandiganbayan (Second Division) and Erineo talismanic qualities as courts must still engage
S. Maliksi"[24] but it is clear that he does not in.a difficult and sensitive balancing
represent the People. process.[31]

Only on rare occasions when the offended In this case, Remulla argues that the cases of
party may be allowed to pursue the criminal Tilendo, Guerrero, Bernat, and Tello dictate
action on his own behalf such as when there that it is mandatory for a respondent or
is a denial of due process,[25] or where the accused to actively assert his right to a speedy
dismissal of the case is capricious shall disposition of his case before it may be
certiorari lie.[26] As will be discussed later, dismissed on the said ground. He insists that
Remulla failed to qualify in any of these Maliksi failed to follow up on his case during
exceptional circumstances. Accordingly, he the preliminary investigation, hence, he cannot
has no legal personality to assail the dismissal invoke his right to a speedy disposition of his
of the criminal case against Maliksi on the case. Further, he avers that the doctrine in
ground of violation of the right to a speedy Coscolluela, where the Court held that there
disposition of his case. was no need for the respondent to follow up
his case, is not controlling and it is only
The right to a speedy disposition of cases is a applicable when the respondent is completely
relative concept unaware of the preliminary investigation
against him.
The right to a speedy disposition of a case, like
the right to a speedy trial,[27] is deemed To resolve these issues, the first set of cases
violated only when the proceeding is attended cited by Remulla must be examined to
by vexatious, capricious, and oppressive determine whether it is mandatory for a
delays; or when unjustified postponements of respondent or accused to assert his right to a
the trial are asked for and secured, or when speedy disposition of his case. Also, the case
without cause or justifiable motive, a long of Coscolluela and its related cases must be
period of time is allowed to elapse without the evaluated whether the respondent or accused
party having his case tried. Equally applicable has the obligation to follow up his case.
is the balancing test used to determine
whether a defendant has been denied his right Tilendo, Guerrero, Bernat, and Tello cases
to a speedy trial, or a speedy disposition of a
case for that matter, in which the conduct of In Tilendo, the petitioner therein invoked his
both the prosecution and the defendant are right to a speedy disposition of his case
weighed.[28] because the preliminary investigation by the
NBI lasted for three (3) years before it filed a
More than a decade after the 1972 leading complaint before the Ombudsman. In denying
U.S. case of Barker v. Wingo[29] was his petition, the Court held that there was no
promulgated, this Court, in Martin v. Ver,[30] unreasonable delay to speak of because the
began adopting the "balancing test" to preliminary investigation stage only began
determine whether a defendant's right to a after the NBI filed its complaint against
speedy trial and a speedy disposition of cases Tilendo. Even assuming there was delay in the
has been violated. As this test necessarily termination of the preliminary investigation,
compels the courts to approach such cases on Tilendo did not do anything to accelerate the
an ad hoc basis, the conduct of both the disposition of his case.
prosecution and defendant are weighed
apropos the four-fold factors, to wit: (1) length In Guerrero, the last pleading before the Court
of the delay; (2) reason for the delay; (3) of First Instance was filed on December 21,
defendant's assertion or non-assertion of his 1979. The case was later re-assigned to two
right; and (4) prejudice to defendant resulting other judges, and on March 14, 1990, the last
from the delay. None of these elements, judge found out that the transcript of
however, is either a necessary or sufficient stenographic notes (TSN) was incomplete and
condition; they are related and must be ordered the parties to have the same
considered together with other relevant completed. The petitioner therein filed a

motion to dismiss on the ground that his right position of the petitioners, the Court ruled that
to a speedy trial had been violated. The Court there was unjustified delay in the preliminary
ruled that there was no such violation because investigation of the case. The Ombudsman
it was only after the new judge reset the could not give a sufficient justification why it
retaking of the testimonies that the petitioner took six (6) years before it approved the
asserted his right. It was also held that a judge resolution of the graft investigator. The Court
could hardly be faulted for the delay because also held that it was not the petitioners' duty to
he could not have rendered the decision follow up on the prosecution of their case. The
without the TSN. The Court observed that the petitioners therein were not informed of the
conduct of the case could have a different ongoing preliminary investigation against
dimension had the petitioner made some overt them.
act to assert his right.
Coscolluela relied on the case of Duterte v.
Later, in Bernat, the criminal case against the Sandiganbayan[32] (Duterte) to justify that
petitioner therein was submitted for resolution there was no requirement to follow up a case.
before the Sandiganbayan on August 23, In the said case, the petitioners were required
1994. It was reassigned to Justice Ma. Cristina to file a comment, instead of a counter-
G. Cortez-Estrada upon her assumption of affidavit. The preliminary investigation was
office on November 3, 1998; and sometime in delayed for four (4) years. They could not have
2002, she found out that some of the TSN urged the speedy resolution of their case
were missing. Thus, the parties were ordered because they were completely unaware that
to attend a conference to discuss the matter. the investigation was still ongoing. The Court
Instead of attending the conference, the also noted therein that the Ombudsman failed
petitioner therein filed a motion asserting his to present any plausible, special or even novel
right to a speedy trial. In dismissing his reason which could justify the 4-year delay in
argument, the Court cited the case of Guerrero terminating its investigation and the incident
where the TSN were also lost and the judge did not involve complicated factual and legal
had to retake the testimonies. It noted that the issues.
petitioner failed to assert his rights. The Court
also reiterated the ruling in Guerrero that the Earlier, in Cervantes v. Sandiganbayan[33]
case could have taken a different dimension (Cervantes), a complaint for violation of
had the petitioner actively asserted his right to Section 3(e) of R.A. No. 3019 was filed before
a speedy trial. the Tanodbayan. On October 16, 1986, the
petitioner therein filed an affidavit to answer
Similarly, Tello echoed the doctrine in Bernat the allegations against him. On May 18, 1992,
because the petitioner therein did not take any or after almost six (6) years, an information
step to accelerate the disposition of his case. was filed by the OSP with the Sandiganbayan.
He only invoked his right to speedy trial after The petitioner asserted his right to a speedy
the Sandiganbayan promulgated its decision disposition of his case. The Court upheld his
convicting him for malversation of public right because the OSP's explanation that no
funds. political motivation appeared to have tainted
the prosecution of the case was insufficient
Coscolluela and its related cases reason to excuse the inordinate delay. It was
also ruled therein that "[i]t is the duty of the
In Coscolluela, the petitioners therein were prosecutor to speedily resolve the complaint,
investigated for violation of Section 3(e) of as mandated by the Constitution, regardless of
R.A. No. 3019. In a resolution, dated March whether the petitioner did not object to the
27, 2003, the assigned graft investigator found delay or that the delay was with his
probable cause against the petitioners. The acquiescence provided that it was not due to
Ombudsman, however, only approved the causes directly attributable to him."[34]
said resolution on May 21, 2009 and filed the
information on June 19, 2009. The petitioners More recently, in People v.
sought to dismiss the case as the delay of six Sandiganbayan[35] (People), a complaint was
(6) years violated their right to a speedy filed against the private respondents therein
disposition of their case. In upholding the on December 28, 1994 before the

Ombudsman. The last counter-affidavit was about the delay because he failed to
filed by the private respondents on March 11, seasonably invoke his right was not upheld by
1996. On July 10, 1996, the special the Court. It reiterated the doctrine of
prosecution officer issued a memorandum Coscolluela that it was not the petitioners' duty
recommending the filing of violation of Section to follow up on the prosecution of their case.
3 (e) of R.A. 3019 and was approved by the
Deputy Ombudsman. Instead of filing the Harmonizing the two sets of cases
information, however, the case was subjected
to several "thorough review and reevaluation." The first set of cases shows that the criminal
It was only on October 6, 2009 that the criminal cases were not dismissed because of the non-
informations were filed before the assertion of the accused of their right to a
Sandiganbayan. Eventually, the private speedy disposition of cases or speedy trial.
respondents implored their right to speedy Other factors in the balancing test were also
disposition of their case. considered by the Court, particularly, the
reason for the delay in the proceedings and
It was held therein that there was inordinate the prejudice caused by the delay.
delay of twelve (12) years from the time that
the last counter-affidavit was filed until the In Guerrero and Bernat, it was held that the
informations were lodged before the court. delay was acceptable because there was a
The explanation of the OSP that the case was necessity to retake the testimonies of the
subjected to a painstaking review and that the witnesses due to the lost TSN. The courts
Ombudsman had to transfer to its new building could not have adjudicated the case without
Were not given credence by the Court. It the TSN. On the other hand, in Tilendo, the
emphasized that the Ombudsman simply Court accepted the explanation of the OSP
failed to timely exercise its discretion as to that there was no inordinate delay because the
whether or not to file criminal cases against the NBFs inquiry was not part of the preliminary
private respondents. The Court did not sustain investigation. Hence, as the length of delay in
the OSP's argument that the respondents these cases were properly justified by the
must be blamed for not taking any step prosecution and the accused therein failed to
whatsoever to accelerate the disposition of the take steps to accelerate their cases, the Court
matter. Citing Cervantes, the Court reiterated found that the there was no prejudice caused,
that it was the duty of the prosecutor to which would warrant the assertion of their right
expedite the prosecution of the case to a speedy disposition of cases.
regardless of the fact that the accused did not
object to the delay. In the second set of cases, the lengthy delay
in the proceeding against the accused therein
Finally, in Inocentes v. People[36] (Inocentes), was not satisfactorily explained. In Cervantes,
a complaint for violation of Section 3 (e) was the prosecution provided a lackluster excuse
filed before the Ombudsman against the that there was no inordinate delay because the
petitioner therein. Following the denial of his case was not politically motivated, in People,
motion for reconsideration on November 14, the filing of the case in court was drastically
2005, the prosecution filed the informations delayed because it was subjected to
with the Regional Trial Court (RTC) Tarlac unnecessary reviews, and the Ombudsman
City. On March 14, 2006, however, the basically failed to decide whether to file the
Ombudsman ordered the withdrawal of the case or not. In Inocentes, there was an
informations. From this point, it took almost six unwarranted delay in the filing of the case due
(6) years, or only on May 2, 2012, before the to the lethargic transfer of the records from the
informations were filed with the RTC to the Sandiganbayan. Finally, in
Sandiganbayan. The Court opined that there Coscolluela, the Ombudsman could not give
was inordinate delay in the disposition of the an explanation why the preliminary
petitioner's case because it took six (6) years investigation was delayed for six years.
before his case and the records thereof was
transferred from the RTC to the Essentially, the Court found in those cases
Sandiganbayan. The argument of the OSP that the State miserably failed to give an
that the petitioner had no right to complain acceptable reason for the extensive delay.

Due to the manifest prejudice caused to the and often, hostility. His financial resources
accused therein, the Court no longer gave may be drained, his association is curtailed,
weighty consideration to their lack of objection and he is subjected to public obloquy.
during the period of delay. It was emphasized
in those cases that it was the duty of the Delay is a two-edge sword. It is the
prosecutor to expedite the prosecution of the government that bears the burden of proving
case regardless if the accused failed to object its case beyond reasonable doubt. The
to the delay. passage of time may make it difficult or
impossible for the government to carry its
Based on the foregoing, there is no conflict burden. The Constitution and the Rules do not
between the first and the second set of cases. require impossibilities or extraordinary efforts,
In the first set, the Court did not solely rely on diligence or exertion from courts or the
the failure of the accused to assert his right; prosecutor, nor contemplate that such right
rather, the proper explanation on the delay shall deprive the State of a reasonable
and the lack of prejudice to the accused were opportunity of fairly prosecuting criminals. As
also considered therein. In the same manner, held in Williams v. United States, for the
the Court in the second set of cases took into government to sustain its right to try the
account several factors in sustaining the right accused despite a delay, it must show two
of the accused to a speedy disposition of things: (a) that the accused suffered no
cases, such as the length of delay, the failure serious prejudice beyond that which ensued
of the prosecution to justify the period of delay, from the ordinary and inevitable delay; and (b)
and the prejudice caused to the accused. The that there was no more delay than is
utter failure of the prosecution to explain the reasonably attributable to the ordinary
delay of the proceedings outweighed the lack processes of justice.
of follow ups from the accused.
Closely related to the length of delay is the
Accordingly, both sets of cases only show that reason or justification of the State for such
"[a] balancing test of applying societal delay. Different weights should be assigned to
interests and the rights of the accused different reasons or justifications invoked by
necessarily compels the court to approach the State. For instance, a deliberate attempt to
speedy trial cases on an ad hoc basis."[37] To delay the trial in order to hamper or prejudice
reiterate, none of the factors in the balancing the defense should be weighted heavily
test is either a necessary or sufficient against the State. Also, it is improper for the
condition; they are related and must be prosecutor to intentionally delay to gain some
considered together with other relevant tactical advantage over the defendant or to
circumstances. Corpus v. Sandiganbayan[38] harass or prejudice him. On the other hand,
thoroughly explained how the factors of the the heavy case load of the prosecution or a
balancing test should be weighed, particularly missing witness should be weighted less
the prejudiced caused by the delay, to wit: heavily against the State. Corollarily, Section
xxx Prejudice should be assessed in the light 4, Rule 119 of the Revised Rules of Criminal
of the interest of the defendant that the speedy Procedure enumerates the factors for granting
trial was designed to protect, namely: to a continuance.[39] [Emphases supplied]
prevent oppressive pre-trial incarceration; to Remulla argues that the assertion or non-
minimize anxiety and concerns of the accused assertion of the right to a speedy disposition of
to trial; and to limit the possibility that his cases determines whether the court must
defense will be impaired. Of these, the most dismiss the case for inordinate delay or
serious is the last, because the inability of a continue the proceedings. Such argument,
defendant adequately to prepare his case however, fails to persuade. It must be
skews the fairness of the entire system. There emphasized that the balancing test is a relative
is also prejudice if the defense witnesses are and flexible concept. The factors therein must
unable to recall accurately the events of the be weighed according to the different facts and
distant past. Even if the accused is not circumstances of each case. The courts' are
imprisoned prior to trial, he is still given wide judicial discretion in analyzing the
disadvantaged by restraints on his liberty and context of the case, bearing in mind the
by living under a cloud of anxiety, suspicion

prejudice caused by the delay both to the circumstances of each case. Applying such
accused and the State. principle in this case, the Court can now
determine whether or not the Ombudsman
In addition, there is no constitutional or legal committed inordinate delay and violated
provision which states that it is mandatory for Maliksi's right to a speedy disposition of his
the accused to follow up his case before his case.
right to its speedy disposition can be
recognized. To rule otherwise would promote The Ombudsman failed to justify the delay in
judicial, legislation where the Court would the proceedings
provide a compulsory requisite .not specified
by the constitutional provision. It simply cannot As indicated in the resolution, dated February
be done, thus, the ad hoc characteristic of the 2, 2015, of the Sandiganbayan, the OSP gave
balancing test must be upheld. the following explanation regarding the delay
in the proceedings against Maliksi as follows:
Likewise, contrary to the argument of the OSP, In justifying the length of time that it took the
the U.S. case of Barker v. Wingo,[40] from OMB to resolve the case, the prosecution
which the balancing test originated, meticulously explains that three different
recognizes that a respondent in a criminal cases were filed against the accused, two of
case has no compulsory obligation to follow up which were from the complaint of Juan (sic)
on his case. It was held therein that "[a] Victor C. Remulla for Violation of the Anti-Graft
defendant has ho duty to bring himself to trial; Law and for Grave Misconduct, which was
the State has that duty as well as the duty of received by the Office of the Deputy
insuring that the trial is consistent with due Ombudsman for Luzon on August 7, 2005
process."[41] (Remulla complaints). The third case was
through the Feedback Report of PCSO Fund
Finally, Remulla argues that the doctrine in Allocation Department Manager Teresita
Coscolluela - that the accused has no duty to Brazil regarding the "Approved Financial
follow up on the prosecution of their case - only Assistance of P10M to province of Cavite c/o
applies to cases where the accused is Gov. Ayong Maliksi," which was transmitted to
unaware of the preliminary investigation. A the Ombudsman Central Office in 2005
review of related and subsequent cases, (PCSO complaint). This was allegedly
however, validates the said doctrine that it is assigned for fact-finding investigation in July 3,
applicable even if the accused was fully 2006 under CPL-C-05-0188. Upon completion
informed and had participated in the of the investigation, the complete record of the
investigation. In Cervantes, the petitioner filed third case was said to have been forwarded to
his affidavit before the Tanodbayan to answer the Office of the Deputy Ombudsman for
the allegations against him. In People, the Luzon on September 26, 2008 for
respondents therein were able to file their consolidation with the two cases initiated by
counter-affidavit with the Ombudsman. In complainant Remulla.
Inocentes, the petitioner filed a motion for
reconsideration before the Ombudsman. In all Since the complete records of the Remulla
these cases, the accused were completely cases, including the proposed Resolution and
informed of the preliminary investigation Decision, had already been submitted to the
against them and they were able to participate Ombudsman Proper for approval on January
in the proceedings before the delays were 9, 2007, through the Central Record Division,
incurred. In spite of this, the Court applied the the Deputy Ombudsman for Luzon sent a
doctrine in Coscolluela because it was the Memorandum dated October 24, 2008 to the
Ombudsman's responsibility to expedite the Ombudsman requesting that the third PCSO
proceedings within the bounds of reasonable case be incorporated with the two Remulla
timeliness in view of its mandate to promptly cases already resolved. This Memorandum
act on all complaints lodged before it. Request was allegedly received by the
Ombudsman Proper on June 4, 2009 and
In fine, it has been settled that the factors in approved by then Ombudsman Merceditas N.
the balancing test must be given different Gutierrez. On April 6, 2010, the Chief
consideration and weight based on the factual Administrative Officer of the Office of the

Deputy Ombudsman for Luzon forwarded the

complete record of the third PCSO case to the As to the reason for the delay, the Court is of
Chief of the Central Records Division for the view that the explanation provided by the
incorporation with the two Remulla cases. OSP fails to justify the delay of six (6) years in
the resolution of the case against Maliksi
Continuing to the recital of events, the because, first, there was a delay in the
prosecution states that the cases against the approval of the Remulla complaints by the
accused were resolved by the Office of the Ombudsman. These complaints were filed in
Deputy Ombudsman for Luzon as early as 2005 and Maliksi filed his counter-affidavit in
2007 and were forwarded in the same year to the same year, on December 15, 2005.
the Ombudsman Proper for final approval. According to the OSP, the proposed resolution
Unfortunately, final action on the Resolution and decision for the Remulla cases were
was allegedly overtaken by disruptive submitted to the Ombudsman as early as
incidents and political events like the 2010 January 9, 2007 for approval. The resolution
hostage-taking at the Quirino Grandstand and and decision, however, remained unacted by
the impeachment of Ombudsman Gutierrez the Ombudsman so much so that it was only
that led to her resignation in April 2011.[42] after one (1) year and nine (9) months that the
[Emphases supplied] Deputy Ombudsman for Luzon was able to
The length of delay in the proceedings of send a memorandum, dated October 24,
Maliksi's case must first be determined. In 2008, for their consolidation with the PCSO
People v. Sandiganbayan,[43] it was held that case. No explanation for the Ombudsman's
inordinate delay should be computed from the inaction on the Remulla cases was advanced
time of the fact-finding investigation until the by the OSP.
completion of the preliminary investigation by
the Ombudsman. The Court expounded that Second, while the memorandum for
"[t]he guarantee of speedy disposition under consolidation of the Remulla and PCSO cases
Section 16 of Article III of the Constitution was dated October 24, 2008, it was only
applies to all cases pending before all judicial, received by the Ombudsman on June 4, 2009.
quasi-judicial or administrative bodies. The Evidently, the mere routing or transfer of the
guarantee would be defeated or rendered memorandum from the Deputy Ombudsman
inutile if the hair-splitting distinction by the for Luzon to the Ombudsman took almost eight
State is accepted. Whether or not the fact- (8) months. Then Ombudsman Gutierrez
finding investigation was separate from the approved the memorandum for consolidation
preliminary investigation conducted by the on an unspecified date,
Office of the Ombudsman should not matter
for purposes of determining if the respondents' Third, notwithstanding the approval of' the
right to the speedy disposition of their cases consolidation by the Ombudsman, it was only
had been violated."[44] on April 6, 2010 when the Chief Administrative
Officer of the Deputy Ombudsman for Luzon
Applying the foregoing rule, the delay in forwarded the complete record of the third
Maliksi's case started from the fact-finding PCSO case to the Chief of the Central
investigation of the Ombudsman when he filed Records Division. As the approval of the
his counter-affidavit in Remulla cases on memorandum on consolidation was undated,
December 15, 2005 until the completion of the the Sandiganbayan assumed that the cause of
PCSO case on October 24, 2008, or a span of delay was either the Ombudsman's belated
three (3) years. At that point, the preliminary approval or the Chief Administrative Officer of
investigation began, until it was terminated on the Deputy Ombudsman's delay in the
August 27, 2014 and the information was filed transmittal of the case records. In either case,
before the November 2014, or a period a delay of ten (10) months for the
of six (6) years. Thus, the Sandiganbayan implementation of a memorandum for
observed that the delay incurred in the consolidation is unacceptable.
proceedings lasted for a total period of nine (9)
years. Even if the Court excludes the fact- Noticeably, the transfer of these memoranda
finding stage of three (3) years, there was still and records are ministerial in nature and does
six (6) years of inordinate delay. not require the exercise of discretion. Thus,

the Court is baffled on how these routine acts incurred eight (8) months of delay. Then, when
could take so long to be accomplished, As the memorandum was approved, it took ten
properly observed by the Sandiganbayan, (10) months before the records could be
routine matters could have been exercised at transferred from the Deputy Ombudsman for
a faster pace in order to avoid unnecessary Luzon to the Ombudsman. Finally, for a period
delay that expectedly bears heavily on of four (4) years, the consolidated cases sat at
litigants.[45] the Ombudsman. As the OSP did not submit
an explanation as to the status of the case in
Fourth, from the time that the consolidation of that 4-year period, the Court can only conduct
the Remulla and PCSO cases were approved guesswork on the cause of its delay.
on April 6, 2010, it took four (4) years, or until
July 8, 2014, before the joint resolution finding Had the Ombudsman immediately approved
probable cause against Maliksi was issued by or disapproved the proposed resolution and
the Ombudsman. There is a void of account as decision submitted to its office on January 9,
to what exactly happened to the case during 2007, then the case would have been promptly
this 4-year period. Even more baffling was that acted upon. If filed before the Sandiganbayan,
although the cases were consolidated, the the prosecution and the defense could have
information filed in November 2014 only timely presented their case. Instead, the
involved the Remulla case. Ombudsman chose inaction which led to a
chain of delays lasting until July 8, 2014. After
Lastly, the OSP sought the understanding of the lapse of nine (9) years of being kept in the
the Sandiganbayan and explained that the dark, Maliksi could not have had the
resolution of the consolidated cases was opportunity to timely present, his case in court
overtaken by disruptive events such as the due to the extensive delay in the preliminary
2010 hostage-taking at the Quirino investigation. Certainly, this protracted period
Grandstand and the impeachment complaint of uncertainty over his criminal case caused
against the Ombudsman Gutierrez. These him prejudice, living under a cloud of anxiety,
excuses, however, could hardly be considered suspicion and even, hostility.
as enough reason to warrant the delay in the
proceedings. Obviously, these events have no Further, in light of the circumstances of this
direct relation to the Remulla and PCSO cases case, the Court does not give great weight to
to affect their speedy resolution. The functions Maliksi's lack of objection over the delay
of the Ombudsman under the Constitution are because the OSP miserably failed to defend
not suspended by the occurrence of unrelated the Ombudsman's inaction. The prosecution
events to its mandate, whether political or not. could not give an acceptable reason to justify
Moreover, to sustain the argument of the OSP the 9-year interval before the case was filed in
would set a perilous precedent as the delayed court. The proceedings were marred by the
cases pending before the Ombudsman from delay in the mechanical transfer of documents
2010 to 2014 can simply be overlooked by and records. No steps were taken by the
citing these occasions. Ombudsman to ensure that the preliminary
investigation would be resolved in a timely
Based on the foregoing, the explanation manner. Clearly, the failure of the prosecution
provided by the OSP falls short of the to justify the 9-year interval before the case
reasonable justification to authorize delay in was filed in court far outweighs Maliksi's own
the proceedings. It was downright inaction over the delay. As articulated in
unnecessary to prolong the proceedings for a Coscolluela, Duterte, Cervantes, People, and
period of nine (9) years. To summarize, the Inocentes, the Court reiterates that it is the
initial delay began when the Ombudsman did duty of the prosecutor to expedite the
not act with dispatch on the approval or prosecution of the case regardless of whether
disapproval of the proposed resolution and or not the accused objects to the delay.
decision in the Remulla. Due to its delay, the
Deputy Ombudsman for Luzon was able to Likewise, Remulla's argument that the
send a memorandum for consolidation with Sandiganbayan only took into account the
the PCSO case. The mere routing or transfer length of delay in the proceedings deserves
of the memorandum to the Ombudsman scant consideration. Aside from the length of

delay, the anti-graft court thoroughly WHEREFORE, the petition is DENIED. The
discussed the Ombudsman's failure to give a February 2, 2015 and March 20, 2015
suitable reason for the delay and the prejudice Resolutions of the Sandiganbayan Second
it had caused to Maliksi. The latter's lack of Division in SB-14-CRM-0432 are AFFIRMED
follow up with his case was not given much in toto.
weight because of the prosecution's manifest
failure to justify the protracted lull in the SO ORDERED.
proceedings. The Sandiganbayan, after
properly taking into consideration all the
relevant factors in the balancing test and gave
different weight on each factor based on the
particular circumstances of this case, came to
a conclusion that the Ombudsman committed
inordinate delay. The case underwent the
intricate and difficult balancing test before
Maliksi's right to a speedy disposition of his
case was sustained. Thus, the Court rules that
the Sandiganbayan did not commit a grave
abuse of discretion in dismissing the criminal
case against Maliksi.

To conclude, the Court finds it proper to

reiterate the underlying principle of the
constitutional right to a speedy disposition of
cases in the landmark case of Tatad v.
xxx Substantial adherence to the requirements
of the law governing the conduct of preliminary
investigation, including substantial compliance
with the time limitation prescribed by the law
for the resolution of the case by the
prosecutor, is part of the procedural due
process constitutionally guaranteed by the
fundamental law. Not only under the broad
umbrella of the due process clause, but under
the constitutional guarantee of "speedy
disposition" of cases as embodied in Section
16 of the Bill of Right (both in the 1973 and the
1987 Constitutions), the inordinate delay is
violative of the petitioner's constitutional rights.

It has been suggested that the long delay in

terminating the preliminary investigation
should not be deemed fatal, for even the
complete absence of a preliminary
investigation does not warrant dismissal of the
information. True — but the absence of a
preliminary investigation can be corrected by
giving the accused such investigation. But an
undue delay in the conduct of a preliminary
investigation cannot be corrected for now, until
man has not yet invented a device for setting
back time.[47]


1700/9 FEB 86.
G.R. No. 85215 July 7, 1989
(s) Felipe Ramos
petitioner, (Printed) F. Ramos
HON. JUDGE RUBEN AYSON, Presiding At the investigation of February 9, 1986,
over Branch 6, Regional Trial Court, First conducted by the PAL Branch Manager in
Judicial Region, Baguio City, and FELIPE Baguio City, Edgardo R. Cruz, in the presence
RAMOS, respondents. of Station Agent Antonio Ocampo, Ticket
Freight Clerk Rodolfo Quitasol, and PALEA
Nelson Lidua for private respondent. Shop Steward Cristeta Domingo, Felipe
Ramos was informed "of the finding of the
Audit Team." Thereafter, his answers in
NARVASA, J.: response to questions by Cruz, were taken
down in writing. Ramos' answers were to the
What has given rise to the controversy at bar effect inter alia that he had not indeed made
is the equation by the respondent Judge of the disclosure of the tickets mentioned in the Audit
right of an individual not to "be compelled to be Team's findings, that the proceeds had been
a witness against himself" accorded by "misused" by him, that although he had
Section 20, Article III of the Constitution, with planned on paying back the money, he had
the right of any person "under investigation for been prevented from doing so, "perhaps (by)
the commission of an offense . . . to remain shame," that he was still willing to settle his
silent and to counsel, and to be informed of obligation, and proferred a "compromise x x to
such right," granted by the same provision. pay on staggered basis, (and) the amount
The relevant facts are not disputed. would be known in the next investigation;" that
he desired the next investigation to be at the
Private respondent Felipe Ramos was a ticket same place, "Baguio CTO," and that he should
freight clerk of the Philippine Airlines (PAL), be represented therein by "Shop stewardees
assigned at its Baguio City station. It having ITR Nieves Blanco;" and that he was willing to
allegedly come to light that he was involved in sign his statement (as he in fact afterwards
irregularities in the sales of plane tickets, 1 the did). 4 How the investigation turned out is not
PAL management notified him of an dealt with the parties at all; but it would seem
investigation to be conducted into the matter that no compromise agreement was reached
of February 9, 1986. That investigation was much less consummated.
scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective About two (2) months later, an information was
Bargaining Agreement signed by it with the filed against Felipe Ramos charging him with
Philippine Airlines Employees' Association the crime of estafa allegedly committed in
(PALEA) to which Ramos pertained.2 Baguio City during the period from March 12,
1986 to January 29, 1987. In that place and
On the day before the investigation, February during that time, according to the indictment, 5
8,1986, Ramos gave to his superiors a he (Ramos) —
handwritten notes 3 reading as follows:
.. with unfaithfulness and/or abuse of
2-8-86 confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio
TO WHOM IT MAY CONCERN: Branch, ... in the following manner, to wit: said
accused ... having been entrusted with and
THE UNDERSIGNED WOULD LIKE TO received in trust fare tickets of passengers for
STATE THAT HE IS WILLING TO SETTLE one-way trip and round-trip in the total amount
IRREGULARITIES ALLEGEDLY CHARGED of P76,700.65, with the express obligation to
VS. HIM IN THE AMT. OF P 76,000 remit all the proceeds of the sale, account for
(APPROX.) SUBJECT TO CONDITIONS AS it and/or to return those unsold, ... once in

possession thereof and instead of complying given on February 8, 1986 x x for the same
with his obligation, with intent to defraud, did reason stated in the exclusion of Exhibit 'A'
then and there ... misappropriate, misapply since it does not appear that the accused was
and convert the value of the tickets in the sum assisted by counsel when he made said
of P76,700.65 and in spite of repeated admission."
demands, ... failed and refused to make good
his obligation, to the damage and prejudice of The private prosecutors filed a motion for
the offended party .. . reconsideration. 9 It was denied, by Order
dated September 14, 1988. 10 In justification
On arraignment on this charge, Felipe Ramos of said Order, respondent Judge invoked this
entered a plea of "Not Guilty," and trial Court's rulings in Morales, Jr. v. Juan Ponce
thereafter ensued. The prosecution of the Enrile, et al., 121 SCRA 538, People v. Galit,
case was undertaken by lawyers of PAL under 135 SCRA 467, People. v. Sison, 142 SCRA
the direction and supervision of the Fiscal. 219, and People v. Decierdo, 149 SCRA 496,
among others, to the effect that "in custodial
At the close of the people's case, the private investigations the right to counsel may be
prosecutors made a written offer of evidence waived but the waiver shall not be valid unless
dated June 21, 1988,6 which included "the made with the assistance of counsel," and the
(above mentioned) statement of accused explicit precept in the present Constitution that
Felipe J. Ramos taken on February 9, 1986 at the rights in custodial investigation "cannot be
PAL Baguio City Ticket Office," which had waived except in writing and in the presence
been marked as Exhibit A, as well as his of counsel." He pointed out that the
"handwritten admission x x given on February investigation of Felipe Ramos at the PAL
8, 1986," also above referred to, which had Baguio Station was one "for the offense of
been marked as Exhibit K. allegedly misappropriating the proceeds of the
tickets issued to him' and therefore clearly fell
The defendant's attorneys filed "within the coverage of the constitutional
"Objections/Comments to Plaintiff s provisions;" and the fact that Ramos was not
Evidence."7 Particularly as regards the detained at the time, or the investigation was
peoples' Exhibit A, the objection was that "said administrative in character could not operate
document, which appears to be a confession, to except the case "from the ambit of the
was taken without the accused being constitutional provision cited."
represented by a lawyer." Exhibit K was
objected to "for the same reasons interposed These Orders, of August 9, 1988 and
under Exhibits 'A' and 'J.' September 14, 1988 are now assailed in the
petition for certiorari and prohibition at bar,
By Order dated August 9, 1988, 8 the filed in this Court by the private prosecutors in
respondent judge admitted all the exhibits "as the name of the People of the Philippines. By
part of the testimony of the witnesses who Resolution dated October 26, 1988, the Court
testified in connection therewith and for required Judge Ayson and Felipe Ramos to
whatever they are worth," except Exhibits A comment on the petition, and directed
and K, which it rejected. His Honor declared issuance of a "TEMPORARY RESTRAINING
Exhibit A "inadmissible in evidence, it ORDER . . . ENJOINING the respondents from
appearing that it is the statement of accused proceeding further with the trial and/or hearing
Felipe Ramos taken on February 9, 1986 at of Criminal Case No. 3488-R (People ... vs.
PAL Baguio City Ticket Office, in an Felipe Ramos), including the issuance of any
investigation conducted by the Branch order, decision or judgment in the aforesaid
Manager x x since it does not appear that the case or on any matter in relation to the same
accused was reminded of this constitutional case, now pending before the Regional Trial
rights to remain silent and to have counsel, Court of Baguio City, Br. 6, First Judicial
and that when he waived the same and gave Region." The Court also subsequently
his statement, it was with the assistance required the Solicitor General to comment on
actually of a counsel." He also declared the petition. The comments of Judge Ayson,
inadmissible "Exhibit K, the handwritten Felipe Ramos, and the Solicitor General have
admission made by accused Felipe J. Ramos, all been filed. The Solicitor General has made

common cause with the petitioner and prays and disparateness of these rights. It has
"that the petition be given due course and placed the rights in separate sections. The
thereafter judgment be rendered setting aside right against self- incrimination, "No person
respondent Judge's Orders . . . and ordering shall be compelled to be a witness against
him to admit Exhibits 'A' and 'K' of the himself," is now embodied in Section 17,
prosecution." The Solicitor General has Article III of the 1987 Constitution. The lights
thereby removed whatever impropriety might of a person in custodial interrogation, which
have attended the institution of the instant have been made more explicit, are now
action in the name of the People of the contained in Section 12 of the same Article
Philippines by lawyers de parte of the offended III.13
party in the criminal action in question.
Right Against Self-Incrimination
The Court deems that there has been full
ventilation of the issue — of whether or not it The first right, against self-incrimination,
was grave abuse of discretion for respondent mentioned in Section 20, Article IV of the 1973
Judge to have excluded the People's Exhibits Constitution, is accorded to every person who
A and K. It will now proceed to resolve it. gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal,
At the core of the controversy is Section 20, or administrative proceeding. 14 The right is
Article IV of the 1973 Constitution, 11 to which NOT to "be compelled to be a witness against
respondent Judge has given a construction himself"
that is disputed by the People. The section
reads as follows: The precept set out in that first sentence has a
settled meaning. 15 It prescribes an "option of
SEC. 20. No person shall be compelled to be refusal to answer incriminating questions and
a witness against himself Any person under not a prohibition of inquiry." 16 It simply
investigation for the commission of an offense secures to a witness, whether he be a party or
shall have the right to remain silent and to not, the right to refue to answer any particular
counsel, and to be informed of such right. No incriminatory question, i.e., one the answer to
force, violence, threat, intimidation, or any which has a tendency to incriminate him for
other means which vitiates the free will shall some crime. However, the right can be
be used against him. Any confession obtained claimed only when the specific question,
in violation of this section shall be inadmissible incriminatory in character, is actually put to the
in evidence. witness. It cannot be claimed at any other time.
It does not give a witness the right to disregard
It should at once be apparent that there are a subpoena, to decline to appear before the
two (2) rights, or sets of rights, dealt with in the court at the time appointed, or to refuse to
section, namely: testify altogether. The witness receiving a
subpoena must obey it, appear as required,
1) the right against self-incrimination — i.e., take the stand, be sworn and answer
the right of a person not to be compelled to be questions. It is only when a particular question
a witness against himself — set out in the first is addressed to him, the answer to which may
sentence, which is a verbatim reproduction of incriminate him for some offense, that he may
Section 18, Article III of the 1935 Constitution, refuse to answer on the strength of the
and is similar to that accorded by the Fifth constitutional guaranty.
Amendment of the American Constitution, 12
and That first sentence of Section 20, Article IV of
the 1973 Constitution does not impose on the
2) the rights of a person in custodial judge, or other officer presiding over a trial,
interrogation, i.e., the rights of every suspect hearing or investigation, any affirmative
"under investigation for the commission of an obligation to advise a witness of his right
offense." against self-incrimination. It is a right that a
witness knows or should know, in accordance
Parenthetically, the 1987 Constitution with the well known axiom that every one is
indicates much more clearly the individuality presumed to know the law, that ignorance of

the law excuses no one. Furthermore, in the interrogation" being regarded as the
very nature of things, neither the judge nor the commencement of an adversary proceeding
witness can be expected to know in advance against the suspect. 24
the character or effect of a question to be put
to the latter. 17 He must be warned prior to any questioning
that he has the right to remain silent, that
The right against self-incrimination is not self- anything he says can be used against him in a
executing or automatically operational. It must court of law, that he has the right to the
be claimed. If not claimed by or in behalf of the presence of an attorney, and that if he cannot
witness, the protection does not come into afford an attorney one will be appointed for him
play. It follows that the right may be waived, prior to any questioning if he so desires.
expressly, or impliedly, as by a failure to claim Opportunity to exercise those rights must be
it at the appropriate time. 18 afforded to him throughout the interrogation.
After such warnings have been given, such
Rights in Custodial Interrogation opportunity afforded him, the individual may
knowingly and intelligently waive these rights
Section 20, Article IV of the 1973 Constitution and agree to answer or make a statement. But
also treats of a second right, or better said, unless and until such warnings and waivers
group of rights. These rights apply to persons are demonstrated by the prosecution at the
"under investigation for the commission of an trial, no evidence obtained as a result of
offense," i.e., "suspects" under investigation interrogation can be used against him.
by police authorities; and this is what makes
these rights different from that embodied in the The objective is to prohibit "incommunicado
first sentence, that against self-incrimination interrogation of individuals in a police-
which, as aforestated, indiscriminately applies dominated atmosphere, resulting in self-
to any person testifying in any proceeding, incriminating statement without full warnings
civil, criminal, or administrative. of constitutional rights." 25

This provision granting explicit rights to The rights above specified, to repeat, exist
persons under investigation for an offense was only in "custodial interrogations," or "in-
not in the 1935 Constitution. It is avowedly custody interrogation of accused persons." 26
derived from the decision of the U.S. Supreme And, as this Court has already stated, by
Court in Miranda v. Arizona, 19 a decision custodial interrogation is meant "questioning
described as an "earthquake in the world of initiated by law enforcement officers after a
law enforcement." 20 person has been taken into custody or
otherwise deprived of his freedom of action in
Section 20 states that whenever any person is any significant way." 27 The situation
"under investigation for the commission of an contemplated has also been more precisely
offense"-- described by this Court." 28

1) he shall have the right to remain silent .. . After a person is arrested and his custodial
and to counsel, and to be informed of such investigation begins a confrontation arises
right, 21 which at best may be tanned unequal. The
detainee is brought to an army camp or police
2) nor force, violence, threat, intimidation, headquarters and there questioned and
or any other means which vitiates the free will "cross-examined" not only by one but as many
shall be used against him; 22 and investigators as may be necessary to break
down his morale. He finds himself in strange
3) any confession obtained in violation of and unfamiliar surroundings, and every person
x x (these rights shall be inadmissible in he meets he considers hostile to him. The
evidence. 23 investigators are well-trained and seasoned in
their work. They employ all the methods and
In Miranda, Chief Justice Warren summarized means that experience and study have taught
the procedural safeguards laid down for a them to extract the truth, or what may pass for
person in police custody, "in-custody it, out of the detainee. Most detainees are

unlettered and are not aware of their other persons, possesses the right against
constitutional rights. And even if they were, the self- incrimination set out in the first sentence
intimidating and coercive presence of the of Section 20 Article IV of the 1973
officers of the law in such an atmosphere Constitution, i.e., the right to refuse to answer
overwhelms them into silence. Section 20 of a specific incriminatory question at the time
the Bill of Rights seeks to remedy this that it is put to him. 30
Additionally, the accused in a criminal case in
Not every statement made to the police by a court has other rights in the matter of giving
person involved in some crime is within the testimony or refusing to do so. An accused
scope of the constitutional protection. If not "occupies a different tier of protection from an
made "under custodial interrogation," or ordinary witness." Under the Rules of Court, in
"under investigation for the commission of an all criminal prosecutions the defendant is
offense," the statement is not protected. Thus, entitled among others-
in one case, 29 where a person went to a
police precinct and before any sort of 1) to be exempt from being a witness
investigation could be initiated, declared that against himself, 31 and 2) to testify as witness
he was giving himself up for the killing of an in his own behalf; but if he offers himself as a
old woman because she was threatening to kill witness he may be cross-examined as any
him by barang, or witchcraft, this Court ruled other witness; however, his neglect or refusal
that such a statement was admissible, to be a witness shall not in any manner
compliance with the constitutional procedure prejudice or be used against him. 32
on custodial interrogation not being exigible
under the circumstances. The right of the defendant in a criminal case
"to be exempt from being a witness against
Rights of Defendant in Criminal Case himself' signifies that he cannot be compelled
to testify or produce evidence in the criminal
As Regards Giving of Testimony case in which he is the accused, or one of the
accused. He cannot be compelled to do so
It is pertinent at this point to inquire whether even by subpoena or other process or order of
the rights just discussed, i.e., (1) that against the Court. He cannot be required to be a
self-incrimination and (2) those during witness either for the prosecution, or for a co-
custodial interrogation apply to persons under accused, or even for himself. 33 In other words
preliminary investigation or already charged in — unlike an ordinary witness (or a party in a
court for a crime. civil action) who may be compelled to testify by
subpoena, having only the right to refuse to
It seems quite evident that a defendant on trial answer a particular incriminatory question at
or under preliminary investigation is not under the time it is put to him-the defendant in a
custodial interrogation. His interrogation by the criminal action can refuse to testify altogether.
police, if any there had been would already He can refuse to take the witness stand, be
have been ended at the time of the filing of the sworn, answer any question. 34 And, as the
criminal case in court (or the public law categorically states, "his neglect or refusal
prosecutors' office). Hence, with respect to a to be a witness shall not in any manner
defendant in a criminal case already pending prejudice or be used against him." 35
in court (or the public prosecutor's office),
there is no occasion to speak of his right while If he should wish to testify in his own behalf,
under "custodial interrogation" laid down by however, he may do so. This is his right. But if
the second and subsequent sentences of he does testify, then he "may be cross-
Section 20, Article IV of the 1973 Constitution, examined as any other witness." He may be
for the obvious reason that he is no longer cross-examined as to any matters stated in his
under "custodial interrogation." direct examination, or connected therewith .
36 He may not on cross-examination refuse to
But unquestionably, the accused in court (or answer any question on the ground that the
undergoing preliminary investigation before answer that he will give, or the evidence he will
the public prosecutor), in common with all

produce, would have a tendency to incriminate incriminate him for some crime other than that
him for the crime with which he is charged. for which he is then prosecuted.

It must however be made clear that if the It should by now be abundantly apparent that
defendant in a criminal action be asked a respondent Judge has misapprehended the
question which might incriminate him, not for nature and import of the disparate rights set
the crime with which he is charged, but for forth in Section 20, Article IV of the 1973
some other crime, distinct from that of which Constitution. He has taken them as applying to
he is accused, he may decline to answer that the same juridical situation, equating one with
specific question, on the strength of the right the other. In so doing, he has grossly erred. To
against self-incrimination granted by the first be sure, His Honor sought to substantiate his
sentence of Section 20, Article IV of the 1973 thesis by arguments he took to be cogent and
Constitution (now Section 17 of the 1987 logical. The thesis was however so far
Constitution). Thus, assuming that in a divorced from the actual and correct state of
prosecution for murder, the accused should the constitutional and legal principles involved
testify in his behalf, he may not on cross- as to make application of said thesis to the
examination refuse to answer any question on case before him tantamount to totally
the ground that he might be implicated in that unfounded, whimsical or capricious exercise
crime of murder; but he may decline to answer of power. His Orders were thus rendered with
any particular question which might implicate grave abuse of discretion. They should be as
him for a different and distinct offense, say, they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case
In fine, a person suspected of having that Felipe Ramos was not in any sense under
committed a crime and subsequently charged custodial interrogation, as the term should be
with its commission in court, has the following properly understood, prior to and during the
rights in the matter of his testifying or administrative inquiry into the discovered
producing evidence, to wit: irregularities in ticket sales in which he
appeared to have had a hand. The
1) BEFORE THE CASE IS FILED IN constitutional rights of a person under
COURT (or with the public prosecutor, for custodial interrogation under Section 20,
preliminary investigation), but after having Article IV of the 1973 Constitution did not
been taken into custody or otherwise deprived therefore come into play, were of no relevance
of his liberty in some significant way, and on to the inquiry. It is also clear, too, that Ramos
being interrogated by the police: the had voluntarily answered questions posed to
continuing right to remain silent and to him on the first day of the administrative
counsel, and to be informed thereof, not to be investigation, February 9, 1986 and agreed
subjected to force, violence, threat, that the proceedings should be recorded, the
intimidation or any other means which vitiates record having thereafter been marked during
the free will; and to have evidence obtained in the trial of the criminal action subsequently
violation of these rights rejected; and filed against him as Exhibit A, just as it is
obvious that the note (later marked as Exhibit
2) AFTER THE CASE IS FILED IN K) that he sent to his superiors on February
COURT — 37 8,1986, the day before the investigation,
offering to compromise his liability in the
a) to refuse to be a witness; alleged irregularities, was a free and even
spontaneous act on his part. They may not be
b) not to have any prejudice whatsoever excluded on the ground that the so-called
result to him by such refusal; "Miranda rights" had not been accorded to
c) to testify in his own behalf, subject to
cross-examination by the prosecution; His Honor adverts to what he perceives to be
the "greater danger x x (of) the violation of the
d) WHILE TESTIFYING, to refuse to right of any person against self-incrimination
answer a specific question which tends to when the investigation is conducted by the

complaining parties, complaining companies, violation of Section 20, Article IV of the 1973
or complaining employers because being Constitution, but simply on the general,
interested parties, unlike the police agencies incontestable proposition that involuntary or
who have no propriety or pecuniary interest to coerced statements may not in justice be
protect, they may in their over-eagerness or received against the makers thereof, and
zealousness bear heavily on their hapless really should not be accorded any evidentiary
suspects, whether employees or not, to give value at all.
statements under an atmosphere of moral
coercion, undue ascendancy and undue WHEREFORE, the writ of certiorari is granted
influence." It suffices to draw attention to the annulling and setting aside the Orders of the
specific and peremptory requirement of the respondent Judge in Criminal Case No. 3488-
law that disciplinary sanctions may not be R, dated August 9, 1988 and September 14,
imposed on any employee by his employer 1988, and he is hereby ordered to admit in
until and unless the employee has been evidence Exhibits "A" and "K" of the
accorded due process, by which is meant that prosecution in said Criminal Case No. 3488-R,
the latter must be informed of the offenses and thereafter proceed with the trial and
ascribed to him and afforded adequate time adjudgment thereof. The temporary
and opportunity to explain his side. The restraining order of October 26, 1988 having
requirement entails the making of statements, become functus officio, is now declared of no
oral or written, by the employee under such further force and effect.
administrative investigation in his defense,
with opportunity to solicit the assistance of
counsel, or his colleagues and friends. The
employee may, of course, refuse to submit any
statement at the investigation, that is his
privilege. But if he should opt to do so, in his
defense to the accusation against him, it would
be absurd to reject his statements, whether at
the administrative investigation, or at a
subsequent criminal action brought against
him, because he had not been accorded, prior
to his making and presenting them, his
"Miranda rights" (to silence and to counsel and
to be informed thereof, etc.) which, to repeat,
are relevant only in custodial investigations.
Indeed, it is self-evident that the employee's
statements, whether called "position paper,"
"answer," etc., are submitted by him precisely
so that they may be admitted and duly
considered by the investigating officer or
committee, in negation or mitigation of his

Of course the possibility cannot be discounted

that in certain instances the judge's expressed
apprehensions may be realized, that violence
or intimidation, undue pressure or influence be
brought to bear on an employee under
investigation — or for that matter, on a person
being interrogated by another whom he has
supposedly offended. In such an event, any
admission or confession wrung from the
person under interrogation would be
inadmissible in evidence, on proof of the vice
or defect vitiating consent, not because of a

G.R. No. L-29169 August 19, 1968

Upon arraignment, all the accused, except the
ROGER CHAVEZ, petitioner, three Does who have not been identified nor
vs. apprehended, pleaded not guilty.1äwphï1.ñët
THE PEOPLE OF THE PHILIPPINES and On July 23, 1963, trial commenced before the
THE WARDEN OF THE CITY JAIL OF judge presiding Branch IX of the Court of First
MANILA, respondents. Instance of Rizal in Quezon City.

Estanislao E. Fernandez and Fausto Arce The trial opened with the following dialogue,
for petitioner. which for the great bearing it has on this case,
Office of the Solicitor General for is here reproduced:.
The parties may proceed.
The thrust of petitioner's case presented in his
original and supplementary petitions invoking FISCAL GRECIA:
jurisdiction of this Court is that he is entitled,
on habeas corpus, to be freed from Our first witness is Roger Chavez [one of the
imprisonment upon the ground that in the trial accused].
which resulted in his conviction1 he was
denied his constitutional right not to be ATTY. CARBON [Counsel for petitioner
compelled to testify against himself. There is Chavez]:
his prayer, too, that, should he fail in this, he
be granted the alternative remedies of I am quite taken by surprise, as counsel for the
certiorari to strike down the two resolutions of accused Roger Chavez, with this move of the
the Court of Appeals dismissing his appeal for Fiscal in presenting him as his witness. I
failure to file brief, and of mandamus to direct object.
the said court to forward his appeal to this
Court for the reason that he was raising purely COURT:
questions of law.
On what ground, counsel? .
The indictment in the court below — the third
amended information — upon which the ATTY. CARBON:
judgment of conviction herein challenged was
rendered, was for qualified theft of a motor On the ground that I have to confer with my
vehicle, one (1) Thunderbird car, Motor No. client. It is really surprising that at this stage,
H9YH-143003, with Plate No. H-16648 Pasay without my being notified by the Fiscal, my
City '62 together with its accessories worth client is being presented as witness for
P22,200.00. Accused were the following: the prosecution. I want to say in passing that it
Petitioner herein, Roger Chavez, Ricardo is only at this very moment that I come to know
Sumilang alias "Romeo Vasquez", Edgardo P. about this strategy of the prosecution.
Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio, COURT (To the Fiscal):
Lorenzo Meneses alias "Lory" Meneses, Peter
Doe, Charlie Doe and Paul Doe.2 You are not withdrawing the information
against the accused Roger Chavez by making
Averred in the aforesaid information was that [him a] state witness?.
on or about the 14th day of November, 1962,
in Quezon City, the accused conspired, with FISCAL GRECIA:
intent of gain, abuse of confidence and without
the consent of the owner thereof, Dy Sun Hiok I am not making him as state witness, Your
y Lim, in asporting the motor vehicle above- Honor.

I am only presenting him as an ordinary Counsel has all the assurance that the court
witness. will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have
As a matter of right, because it will incriminate the accused called on the witnessstand.
my client, I object.
I submit.
The Court will give counsel for Roger Chavez
fifteen minutes within which to confer and xxx xxx xxx
explain to his client about the giving of his
testimony. ATTY. CRUZ [Counsel for defendants Pascual
and Meneses]: .
xxx xxx xxx
COURT: [after the recess]
This incident of the accused Roger Chavez
Are the parties ready? . being called to testify for the prosecution is
something so sudden that has come to the
FISCAL: knowledge of this counsel.

We are ready to call on our first witness, Roger This representation has been apprised of the
Chavez. witnesses embraced in the information.

ATTY. CARBON: For which reason I pray this court that I be

given at least some days to meet whatever
As per understanding, the proceeding was testimony this witness will bring about. I
suspended in order to enable me to confer with therefore move for postponement of today's
my client. hearing.

I conferred with my client and he assured me COURT:

that he will not testify for the prosecution this
morning after I have explained to him the The court will give counsel time within which to
consequences of what will transpire. prepare his cross-examination of this witness.


What he will testify to does not necessarily I labored under the impression that the
incriminate him, counsel. witnesses for the prosecution in this criminal
case are those only listed in the information.
And there is the right of the prosecution to ask
anybody to act as witness on the witness- I did not know until this morning that one of the
stand including the accused. accused will testify as witness for the
If there should be any question that is
incriminating then that is the time for counsel COURT:
to interpose his objection and the court will
sustain him if and when the court feels that the That's the reason why the court will go along
answer of this witness to the question would with counsels for the accused and will give
incriminate him. them time within which to prepare for their
cross-examination of this witness.

The court will not defer the taking of the direct he knew was in the market for such a car,
examination of the witness. Chavez asked Lee whether his car was for
sale. Lee answered affirmatively and left his
Call the witness to the witness stand. address with Chavez. Then, on November 12,
Chavez met Sumilang at a barbershop
EVIDENCE FOR THE PROSECUTION informed him about the Thunderbird. But
Sumilang said that he had changed his mind
ROGER CHAVEZ, 31 years old, single, buy about buying a new car. Instead, he told
and sell merchant, presently detained at the Chavez that he wanted to mortgage his Buick
Manila Police Department headquarters, after car for P10,000.00 to cover an indebtedness
being duly sworn according to law, declared as in Pasay City. Upon the suggestion of Chavez,
follows: they went to see Luis Asistio, who he knew
was lending money on car mortgages and
ATTY. IBASCO [Counsel for defendant Luis who, on one occasion, already lent Romeo
Asistio]: Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a
WITH THE LEAVE OF THE COURT: better idea on how to raise the money. His plan
was to capitalize on Romeo Vasquez'
This witness, Roger Chavez is one of the reputation as a wealthy movie star, introduce
accused in this case No. Q-5311. him as a buyer to someone who was selling a
car and, after the deed of sale is signed, by
The information alleges conspiracy. Under trickery to run away with the car. Asistio would
Rule 123, Section 12, it states: then register it, sell it to a third person for a
profit. Chavez known to be a car agent was
'The act or declaration of a conspirator relating included in the plan. He furnished the name of
to the conspiracy and during its existence, may Johnson Lee who was selling his Thunderbird.
be given in evidence against the co- 1äwphï1.ñët
conspirator after the conspiracy is shown by
evidence other than such act or declaration.' In the morning of November 14, Chavez
telephoned Johnson Lee and arranged for an
COURT: appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his
That is premature, counsel. Neither the court Thunderbird on Highway 54. Sumilang was
nor counsels for the accused know what the introduced as the interested buyer. Sumilang's
prosecution events to establish by calling this driver inspected the car, took the wheel for a
witness to the witness stand. while. After Sumilang and Lee agreed on the
purchase price (P21.000.00), they went to
ATTY. IBASCO: Binondo to Johnson Lee's cousin, Dy Sun
Hiok, in whose name the car was registered.
I submit. Thereafter, they went to see a lawyer notary
public in Quezon City, known to Chavez for the
COURT: The Fiscal may proceed.3 drafting of the deed of sale. After the deed of
sale was drawn up, it was signed by Sumilang
And so did the trial proceed. It began with the as the vendee, Dy Sun Hiok the vendor, and
"direct examination" of Roger Chavez by Sumilang's driver and Johnson Lee the
"Fiscal Grecia". witnesses thereto.

Came the judgment of February 1, 1965. The As payment was to be made at Eugene's
version of the prosecution as found by the restaurant in Quezon City, all of them then
court below may be briefly narrated as follows: drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the
A few days before November 12, 1962, Roger pockets of Johnson Lee.
Chavez saw Johnson Lee, a Chinese, driving
a Thunderbird car. With Ricardo Sumilang At Eugene's, a man approached Sumilang
(movie actor Romeo Vasquez) in mind, whom with a note which stated that the money was

ready at the Dalisay Theater. Sumilang then enough funds therefor. Baltazar and Cailles
wrote on the same note that the money should agreed to give the money the nextday as long
be brought to the restaurant. At the same time as the check would be left with them and
he requested Lee to exhibit the deed of sale of Sumilang would sign a promissory note for
the car to the note bearer.4 P10,000.00. Baltazar later informed Sumilang
that Chavez picked up the money the next day.
Then, the two Chinese were left alone in the Four or five days afterwards, Chavez returned
restaurant. For Sumilang, who had left the P4,000.00 to Sumilang because P6,000.00
table to pose for pictures with some fans and was enough for the deposit. And so, Sumilang
come back, again left never to return. So did gave back the P4,000.00 to Baltazar.
Chavez, who disappeared after he left on the
pretext of buying cigarettes. The two Chinese About the end of October or at the beginning
could not locate Sumilang and Chavez. They of November, Chavez asked Sumilang for
went out to the place where the Thunderbird another P3,000.00. Sumilang sent Chavez to
was parked, found that it was gone. They then Baltazar and Cailles, with a note requesting
immediately reported its loss to the police. that they accommodate him once more. He
Much later, the NBI recovered the already also sent a check, again without funds.
repainted car and impounded it. Baltazar gave the money after verifying the
authenticity of the note.
Right after the meeting at Eugene's, Chavez,
Sumilang and Asistio converged that same On November 14, Chavez appeared at
day at Barrio Fiesta, a restaurant at Highway Sumilang's house with the news that the car
54 near the Balintawak monument in was ready if Sumilang was ready with the rest
Caloocan. There, Asistio handed to Sumilang of the money. So Sumilang got P9,000.00 from
P1,000.00 cash and a golf set worth P800.00 his mother and another P4,000.00 from his
as the latter's share in the transaction. On the aparador. He immediately gave P6,000.00 to
14th of November, the registration of the car Chavez, intending to pay out the balance upon
was transferred in the name of Sumilang in the car's delivery. It was then that Chavez told
Cavite City, and three days later, in the name Sumilang that the car was already bought by a
of Asistio in Caloocan. Chinese who would be the vendor.

From the court's decision, Ricardo Sumilang's The purchase price finally agreed upon
version, corroborated in part by Asistio, may between Sumilang and Johnson Lee was
be condensed as follows: P21,000.00, plus P500.00 agents commission
at the expense of the buyer. Sumilang told Lee
In the last week of September, 1962, Sumilang that he already paid part of the price to
saw Roger Chavez at a gas station. The latter Chavez.
informed him that there was a Thunderbird
from Clark Field for sale for a price between At Eugene's, Chavez asked Sumilang for the
P20,000.00 and P22,000.00. Chavez said that balance. Sumilang accommodated. There,
it could be held for him with a down payment Sumilang, also saw a friend, "Ging" Pascual.
of P10,000.00. In the course of their conversation at the bar,
Sumilang mentioned the proposed transaction
To raise this sum, Sumilang and Chavez, on thru Chavez. Pascual warned that Chavez
October 1, went to the house of a certain Nena was a "smart" agent and advised that
Hernaez de los Reyes who wrote out a check Sumilang should have a receipt for his money.
for P5,000.00 as a loan to Sumilang. That A certain Bimbo, a friend of Pascual, offered to
check was exhibited in court. Sumilang and make out a receipt for Chavez to sign.
Chavez then went to Pasay City to see a
certain Mario Baltazar, an agent of the Pasay After Sumilang returned from posing for some
City Mayor, and Narsing Cailles, Chief of the photographs with some of his fans, Bimbo
Fire Department. Sumilang asked the two for showed him the receipt already signed by
a P10,000-loan backed up by the P5,000.00- Chavez. Sumilang requested Pascual and
check aforesaid on condition that it should not Bimbo to sign the receipt as witnesses. And
be cashed immediately as there were not

they did. This receipt was offered as an exhibit sensationalism caused by the other. But
by the prosecution and by Sumilang. Roger Chavez' accusations of Asistio's
participation is utterly uncorroborated. And
When Sumilang was ready to leave Eugene's, coming, as it does, from a man who has had
Johnson Lee turned over to him the deed of at least two convictions for acts not very
sale, the registration papers and the keys to different from those charged in this
the car. After shaking hands with Lee, information, the Court would be too gullible if it
Sumilang drove away in the car with his driver were to give full credence to his words even if
at the wheel. they concerned a man no less notorious than
Two or three days afterwards, Sumilang
dropped by the Barrio Fiesta on his way to a The trial court then came to the conclusion that
film shooting at Bulacan. He saw Asistio with if Johnson Lee was not paid for his car, he had
many companions. Asistio liked his no one but Roger Chavez to blame.
Thunderbird parked outside. Asistio offered to
buy it from him for P22,500.00. As the offer The sum of all these is that the trial court freed
was good, and knowing Asistio's and his all the accused except Roger Chavez who was
friends' reputation for always getting what they found guilty beyond reasonable doubt of the
wanted, Sumilang consented to the sale. crime of qualified theft. He was accordingly
Asistio tendered a down payment of sentenced to suffer an indeterminate penalty
P1,000.00; the balance he promised to pay the of not less than ten (10) years, one (1) day, as
next day after negotiating with some financing minimum and not more than fourteen (14)
company. Before said balance could be paid, years, eight (8) months and one (1) day as
the car was impounded. maximum, to indemnify Dy Sun Hiok and/or
Johnson Lee in the sum of P21,000.00 without
The trial court gave evidence to Sumilang's subsidiary imprisonment in case of insolvency,
averment, strengthened by Baltazar's and to undergo the accessory penalties prescribed
Cailles' corroborations, that he paid good by law, and to pay the costs. The Thunderbird
money for the car. Sumilang was thus cleared. car then in the custody of the NBI was ordered
So was Asistio whom the trial court believed to to be turned over to Ricardo Sumilang, who
be a mere buyer of the car. And so, the was directed to return to Asistio the sum of
prosecution's theory of conspiracy was P1,000.00 unless the latter chose to pay
discounted. P21,500.00, representing the balance of the
contract price for the car.
As to the other accused, the court found no
case against Pedro Rebullo alias "Pita" and The foregoing sentence was promulgated on
Lorenzo Meneses alias "Lory". The accused March 8, 1965. Roger Chavez appealed to the
"Ging" Pascual was also acquitted for in the Court of Appeals.
first place he was not identified by Johnson
Lee in court. On April 18, 1968, the Court of Appeals
required Atty. Natividad Marquez, counsel for
As to Roger Chavez, however, the court had Roger Chavez, to show cause within ten days
this to say: "Roger Chavez does not offer any from notice why Chavez' appeal should not be
defense. As a matter of fact, his testimony as considered abandoned and dismissed.
witness for the prosecution establishes his Reason for this is that said lawyer received
guilt beyond reasonable doubt."5 The trial notice to file brief on December 28, 1967 and
court branded him "a self-confessed culprit".6 the period for the filing thereof lapsed on
The court further continued: January 27, 1968 without any brief having
been filed.
It is not improbable that true to the saying that
misery loves company Roger Chavez tried to On May 13, 1968, Atty. Marquez registered a
drag his co-accused down with him by coloring detailed written explanation. She also stated
his story with fabrications which he expected that if she were allowed to file appellant's brief
would easily stick together what with the she would go along with the factual findings of
newspaper notoriety of one and the

the court below but will show however that its freedom."11 Mr. Justice Abad Santos recounts
conclusion is erroneous.8 the historical background of this constitutional
inhibition, thus: " "The maxim Nemo tenetur
On May 14, 1968, the Court of Appeals, seipsum accusare had its origin in a protest
despite the foregoing explanation, resolved to against the inquisitorial and manifestly unjust
dismiss the appeal. A move to reconsider was methods of interrogating accused persons,
unavailing. For, on June 21, 1968, the Court of which has long obtained in the continental
Appeals, through a per curiam resolution, system, and, until the expulsion of the Stuarts
disposed to maintain its May 14 resolution from the British throne in 1688, and the
dismissing the appeal, directed the City erection of additional barriers for the protection
Warden of Manila where Chavez is confined of the people against the exercise of arbitrary
by virtue of the warrant of arrest issued by the power, was not uncommon even in England.
Court of Appeals, to turn him over to While the admissions of confessions of the
Muntinlupa Bilibid Prisons pending execution prisoner, when voluntarily and freely made,
of the judgment below, and ordered remand of have always ranked high in the scale of
the case to the Quezon City court for execution incriminating evidence, if an accused person
of judgment. be asked to explain his apparent connection
with a crime under investigation, the ease with
It was at this stage that the present which the questions put to him may assume an
proceedings were commenced in this Court. inquisitorial character, the temptation to press,
the witness unduly, to browbeat him if he be
Upon the petitions, the return, and the reply, timid or reluctant, to push him into a corner,
and after hearing on oral arguments, we now and to entrap him into fatal contradictions,
come to grips with the main problem which is so painfully evident in many of the
presented. earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan
We concentrate attention on that phase of the minister, made the system so odious as to give
issues which relates petitioner's assertion that rise to a demand for its total abolition. The
he was compelled to testify against himself. change in the English criminal procedure in
For indeed if this one question is resolved in that particular seems to be founded upon no
the affirmative, we need not reach the others; statute and no judicial opinion, but upon a
in which case, these should not be pursued general and silent acquiescence of the courts
here. in a popular demand. But, however adopted, it
has become firmly embedded in English, as
1. Petitioner's plea on this score rests upon his well as in American jurisprudence. So deeply
averment, with proof, of violation of his right — did the iniquities of the ancient system impress
constitutionally entrenched — against self- themselves upon the minds of the American
incrimination. He asks that the hand of this colonists that the states, with one accord,
Court be made to bear down upon his made a denial of the right to question an
conviction; that he be relieved of the effects accused person a part of their fundamental
thereof. He asks us to consider the law, so that a maxim which in England was a
constitutional injunction that "No person shall mere rule of evidence, became clothed in this
be compelled to be a witness against country with the impregnability of a
himself,"9 fully echoed in Section 1, Rule 115, constitutional enactment." (Brown vs. Walker,
Rules of Court where, in all criminal 161 U.S., 591, 597; 40 Law. ed., 819, 821)."
prosecutions, the defendant shall be entitled: 12 Mr. Justice Malcolm, in expressive
"(e) To be exempt from being a witness language, tells us that this maxim was
against himself." . recognized in England in the early days "in a
revolt against the thumbscrew and the rack."
It has been said that forcing a man to be a 13 An old Philippine case [1904] 14 speaks of
witness against himself is at war with "the this constitutional injunction as "older than the
fundamentals of a republican government"; 10 Government of the United States"; as having
that [i]t may suit the purposes of despotic "its origin in a protest against the inquisitorial
power but it can not abide the pure methods of interrogating the accused person";
atmosphere of political liberty and personal and as having been adopted in the Philippines

"to wipe out such practices as formerly judgment would in our opinion be sufficient. So
prevailed in these Islands of requiring accused is moral coercion "tending to force testimony
persons to submit to judicial examinations, from the unwilling lips of the defendant." 18
and to give testimony regarding the offenses
with which they were charged." 2. With the foregoing as guideposts, we now
turn to the facts. Petitioner is a defendant in a
So it is then that this right is "not merely a criminal case. He was called by the
formal technical rule the enforcement of which prosecution as the first witness in that case to
is left to the discretion of the court"; it is testify for the People during the first day of trial
mandatory; it secures to a defendant a thereof. Petitioner objected and invoked the
valuable and substantive right; 15 it is privilege of self-incrimination. This he
fundamental to our scheme of justice. Just a broadened by the clear cut statement that he
few months ago, the Supreme Court of the will not testify. But petitioner's protestations
United States (January 29, 1968), speaking were met with the judge's emphatic statement
thru Mr. Justice Harlan warned that "[t]he that it "is the right of the prosecution to ask
constitutional privilege was intended to shield anybody to act as witness on the witness stand
the guilty and imprudent as well as the including the accused," and that defense
innocent and foresighted." 16 counsel "could not object to have the accused
called on the witness stand." The cumulative
It is in this context that we say that the impact of all these is that accused-petitioner
constitutional guarantee may not be treated had to take the stand. He was thus
with unconcern. To repeat, it is mandatory; it peremptorily asked to create evidence against
secures to every defendant a valuable and himself. The foregoing situation molds a solid
substantive right. Tañada and Fernando case for petitioner, backed by the Constitution,
(Constitution of the Philippines, 4th ed., vol. I, the law, and jurisprudence.
pp. 583-584) take note of U.S. vs. Navarro,
supra, which reaffirms the rule that the Petitioner, as accused, occupies a different
constitutional proscription was established on tier of protection from an ordinary witness.
broad grounds of public policy and humanity; Whereas an ordinary witness may be
of policy because it would place the witness compelled to take the witness stand and claim
against the strongest temptation to commit the privilege as each question requiring an
perjury, and of humanity because it would be incriminating answer is shot at him, 19 and
to extort a confession of truth by a kind of accused may altogether refuse to take the
duress every species and degree of which the witness stand and refuse to answer any and
law abhors. 17 all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People
Therefore, the court may not extract from a would be to incriminate him. 21 The rule
defendant's own lips and against his will an positively intends to avoid and prohibit the
admission of his guilt. Nor may a court as certainly inhuman procedure of compelling a
much as resort to compulsory disclosure, person "to furnish the missing evidence
directly or indirectly, of facts usable against necessary for his conviction." 22 This rule may
him as a confession of the crime or the apply even to a co-defendant in a joint trial.23
tendency of which is to prove the commission
of a crime. Because, it is his right to forego And the guide in the interpretation of the
testimony, to remain silent, unless he chooses constitutional precept that the accused shall
to take the witness stand — with undiluted, not be compelled to furnish evidence against
unfettered exercise of his own free, genuine himself "is not the probability of the evidence
will. but it is the capability of abuse." 24 Thus it is,
that it was undoubtedly erroneous for the trial
Compulsion as it is understood here does not judge to placate petitioner with these words:.
necessarily connote the use of violence; it may
be the product of unintentional statements. What he will testify to does not necessarily
Pressure which operates to overbear his will, incriminate him, counsel.
disable him from making a free and rational
choice, or impair his capacity for rational

And there is the right of the prosecution to ask The decision convicting Roger Chavez was
anybody to act as witness on the witness- clearly of the view that the case for the People
stand including the accused. was built primarily around the admissions of
Chavez himself. The trial court described
If there should be any question that is Chavez as the "star witness for the
incriminating then that is the time for counsel prosecution". Indeed, the damaging facts
to interpose his objection and the court will forged in the decision were drawn directly from
sustain him if and when the court feels that the the lips of Chavez as a prosecution witness
answer of this witness to the question would and of course Ricardo Sumilang for the
incriminate him. defense. There are the unequivocal
statements in the decision that "even accused
Counsel has all the assurance that the court Chavez" identified "the very same Thunderbird
will not require the witness to answer that Johnson Lee had offered for sale"; that
questions which would incriminate him. Chavez "testimony as witness for the
prosecution establishes his guilt beyond
But surely, counsel could not object to have reasonable doubt and that Chavez is "a self-
the accused called on the witness stand. confessed culprit". 1äwphï1.ñët

Paraphrasing Chief Justice Marshall in Aaron 4. With all these, we have no hesitancy in
Burr's Trial, Robertsons Rep. I, 208, 244, saying that petitioner was forced to testify to
quoted in VIII Wigmore, p. 355, 25 While a incriminate himself, in full breach of his
defendant's knowledge of the facts remains constitutional right to remain silent. It cannot
concealed within his bosom, he is safe; but be said now that he has waived his right. He
draw it from thence, and he is exposed" — to did not volunteer to take the stand and in his
conviction. own defense; he did not offer himself as a
witness; on the contrary, he claimed the right
The judge's words heretofore quoted — "But upon being called to testify. If petitioner
surely counsel could not object to have the nevertheless answered the questions inspite
accused called on the witness stand" — of his fear of being accused of perjury or being
wielded authority. By those words, petitioner put under contempt, this circumstance cannot
was enveloped by a coercive force; they be counted against him. His testimony is not of
deprived him of his will to resist; they his own choice. To him it was a case of
foreclosed choice; the realities of human compelled submission. He was a cowed
nature tell us that as he took his oath to tell the participant in proceedings before a judge who
truth, the whole truth and nothing but the truth, possessed the power to put him under
no genuine consent underlay submission to contempt had he chosen to remain silent. Nor
take the witness stand. Constitutionally sound could he escape testifying. The court made it
consent was absent. abundantly clear that his testimony at least on
direct examination would be taken right then
3. Prejudice to the accused for having been and thereon the first day of the trial.
compelled over his objections to be a witness
for the People is at once apparent. The record It matters not that, after all efforts to stave off
discloses that by leading questions Chavez, petitioner's taking the stand became fruitless,
the accused, was made to affirm his statement no objections to questions propounded to him
given to the NBI agents on July 17, 1963 at were made. Here involve is not a mere
5:00 o'clock in the afternoon. 26 And this question of self-incrimination. It is a
statement detailed the plan and execution defendant's constitutional immunity from being
thereof by Sumilang (Vasquez), Asistio and called to testify against himself. And the
himself to deprive the Chinese of his objection made at the beginning is a
Thunderbird car. And he himself proceeded to continuing one. 1äwphï1.ñët
narrate the same anew in open court. He
identified the Thunderbird car involved in the There is therefore no waiver of the privilege.
case. 27 "To be effective, a waiver must be certain and
unequivocal, and intelligently, understandably,
and willingly made; such waiver following only

where liberty of choice has been fully jurisdictional prerequisite to a Federal Court's
accorded. After a claim a witness cannot authority. When this right is properly waived,
properly be held to have waived his privilege the assistance of Counsel is no longer a
on vague and uncertain evidence." 28 The necessary element of the Court's jurisdiction to
teaching in Johnson vs. Zerbst 29 is this: "It proceed to conviction and sentence. If the
has been pointed out that "courts indulge accused, however, is not represented by
every reasonable presumption against waiver" Counsel and has not competently and
of fundamental constitutional rights and that intelligently waived his constitutional right, the
we "do not presume acquiescence in the loss Sixth Amendment stands as a jurisdictional
of fundamental rights." A waiver is ordinarily bar to a valid conviction and sentence
an intentional relinquishment or abandonment depriving him of his liberty. A court's
of a known right or privilege." Renuntiatio non jurisdiction at the beginning of trial may be lost
praesumitur. "in the course of the proceedings" due to
failure to complete the court — as the Sixth
The foregoing guidelines, juxtaposed with the Amendment requires — by providing Counsel
circumstances of the case heretofore adverted for an accused who is unable to obtain
to, make waiver a shaky defense. It cannot Counsel, who has not intelligently waived this
stand. If, by his own admission, defendant constitutional guaranty, and whose life or
proved his guilt, still, his original claim remains liberty is at stake. If this requirement of the
valid. For the privilege, we say again, is a Sixth Amendment is not complied with, the
rampart that gives protection - even to the court no longer has jurisdiction to proceed.
guilty. 30 The judgment of conviction pronounced by a
court without jurisdiction is void, and one
5. The course which petitioner takes is correct. imprisoned thereunder may obtain release of
Habeas corpus is a high prerogative writ. 31 It habeas corpus. 41
is traditionally considered as an exceptional
remedy to release a person whose liberty is Under our own Rules of Court, to grant the
illegally restrained such as when the remedy to the accused Roger Chavez whose
accused's constitutional rights are case presents a clear picture of disregard of a
disregarded. 32 Such defect results in the constitutional right is absolutely proper.
absence or loss of jurisdiction 33 and therefore Section 1 of Rule 102 extends the writ, unless
invalidates the trial and the consequent otherwise expressly provided by law, "to all
conviction of the accused whose fundamental cases of illegal confinement or detention by
right was violated. 34 That void judgment of which any person is deprived of his liberty, or
conviction may be challenged by collateral by which the rightful custody of any person is
attack, which precisely is the function of withheld from the person entitled thereto.
habeas corpus. 35 This writ may issue even if
another remedy which is less effective may be Just as we are about to write finis to our task,
availed of by the defendant. 36 Thus, failure we are prompted to restate that: "A void
by the accused to perfect his appeal before the judgment is in legal effect no judgment. By it
Court of Appeals does not preclude a recourse no rights are divested. From it no rights can be
to the writ. 37 The writ may be granted upon a obtained. Being worthless in itself, all
judgment already final. 38 For, as explained in proceedings founded upon it are equally
Johnson vs. Zerbst, 39 the writ of habeas worthless. It neither binds nor bars any one. All
corpus as an extraordinary remedy must be acts performed under it and all claims flowing
liberally given effect 40 so as to protect well a out of it are void. The parties attempting to
person whose liberty is at stake. The propriety enforce it may be responsible as trespassers.
of the writ was given the nod in that case, ... " 42
involving a violation of another constitutional
right, in this wise: 6. Respondents' return 43 shows that
petitioner is still serving under a final and valid
Since the Sixth Amendment constitutionally judgment of conviction for another offense. We
entitles one charged with crime to the should guard against the improvident issuance
assistance of Counsel, compliance with this of an order discharging a petitioner from
constitutional mandate is an essential confinement. The position we take here is that

petitioner herein is entitled to liberty thru

habeas corpus only with respect to Criminal
Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, under which he
was prosecuted and convicted.

Upon the view we take of this case, judgment

is hereby rendered directing the respondent
Warden of the City Jail of Manila or the
Director of Prisons or any other officer or
person in custody of petitioner Roger Chavez
by reason of the judgment of the Court of First
Instance of Rizal, Quezon City Branch, in
Criminal Case Q-5311, entitled "People of the
Philippines, plaintiff, vs. Ricardo Sumilang, et
al., accused," to discharge said Roger Chavez
from custody, unless he is held, kept in
custody or detained for any cause or reason
other than the said judgment in said Criminal
Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, in which event the
discharge herein directed shall be effected
when such other cause or reason ceases to

No costs. So ordered.

G.R. No. 16444 September 8, 1920 section 15 [4]; United States Constitution, fifth
amendment.) Counsel for petitioner argues
EMETERIA VILLAFLOR, petitioner, that such bodily exhibition is an infringement
vs. of the constitutional provision; the
RICARDO SUMMERS, sheriff of the City of representative of the city fiscal contends that it
Manila, respondent. is not an infringement of the constitutional
provision. The trial judge in the instant case
Alfredo Calupitan, and Gibbs, McDonough has held with the fiscal; while it is brought to
& Johnson for petitioner. our notice that a judge of the same court has
Assistant City of Fiscal Felix for held on an identical question as contended for
respondent. by the attorney for the accused and petitioner.

MALCOLM, J.: The authorities are abundant but conflicting.

What may be termed the conservative courts
The petitioner prays that a writ of habeas emphasize greatly the humanitarianism of the
corpus issue to restore her to her liberty. constitutional provisions and are pleased to
extend the privilege in order that its mantle
The facts are not dispute. In a criminal case may cover any fact by which the accused is
pending before the Court of First Instance of compelled to make evidence against himself.
the city of Manila, Emeteria Villaflor and (Compare State vs. Jacobs [1858], 50 N. C.,
Florentino Souingco are charged with the 259 with State vs. Ah Chuey [1879], 14 Nev.,
crime of adultery. On this case coming on for 79. See further State vs. Ah Nordstrom [1893],
trial before the Hon. Pedro Concepcion, Judge 7 Wash., 506; State vs. Height [1902]. 117
of First Instance, upon the petitioner of the Iowa., 650; Thornton vs. State [1903], 117
assistant fiscal for the city of Manila, the court Wis., 338.) A case concordant with this view
ordered the defendant Emeteria Villaflor, nor and almost directly in point is People vs.
become the petitioner herein, to submit her McCoy ([1873], 45 How. Pr., 216). A woman
body to the examination of one or two was charged with the crime of infanticide. The
competent doctors to determine if she was corner directed two physicians to go to the jail
pregnant or not. The accused refused to obey and examine her private parts to determine
the order on the ground that such examination whether she had recently been delivered of a
of her person was a violation of the child. She objected to the examination, but
constitutional provision relating to self- being threatened with force, yielded, and the
incrimination. Thereupon she was found in examination was had. The evidence of these
contempt of court and was ordered to be physicians was offered at the trial and ruled
committed to Bilibid Prison until she should out. The court said that the proceeding was in
permit the medical examination required by violation of the spirit and meaning of the
the court. Constitution, which declares that "no person
shall be compelled in any criminal case to be
The sole legal issue from the admitted facts is a witness against himself." Continuing, the
whether the compelling of a woman to permit court said: "They might as well have sworn the
her body to be examined by physicians to prisoner, and compelled her, by threats, to
determine if she is pregnant, violates that testify that she had been pregnant, and had
portion of the Philippine Bill of Rights and that been delivered of a child, as to have compelled
portion of our Code of Criminal Procedure her, by threats, to allow them to look into her
which find their origin in the Constitution of the person, with the aid of a speculum, to
United States and practically all state ascertain whether she had been pregnant and
constitutions and in the common law rules of been delivered of a child. . . . Has this court the
evidence, providing that no person shall be right to compel the prisoner now to submit to
compelled in any criminal case to be a witness an examination they are of the opinion she is
against himself. (President's Instructions to the not a virgin, and has had a child? It is not
Philippine Commission; Act of Congress of possible that this court has that right; and it is
July 1, 1902, section 5, paragraph 3; Act of too clear to admit of argument that evidence
Congress of August 29, 1916, section 3; thus obtained would be inadmissible against
paragraph 3; Code of Criminal Procedure, the prisoner."

Although we have stated s proposition

It may be revealing a judicial secret, but previously announced by this court and by the
nevertheless we cannot refrain from saying highest tribunal in the United States, we
that, greatly impressed with the weight of cannot unconcernedly leave the subject
these decisions, especially the one written by without further consideration. Even in the
Mr. Justice McClain, in State vs. Height, supra, opinion Mr. Justice Holmes, to which we have
the instant case was reported by the writer with alluded, there was inserted the careful proviso
the tentative recommendation that the court that "we need not consider how far a court
should lay down the general rule that a would go in compelling a man to exhibit
defendant can be compelled to disclose only himself." Other courts have likewise avoided
those parts of the body which are not usually any attempt to determine the exact location of
covered. Buth having disabused our minds of the dividing line between what is proper and
a too sensitive appreciation of the rights of what is improper in this very broad
accused persons, and having been able, as constitutional field. But here before us is
we think, to penetrate through the maze of law presented what would seem to be the most
reports to the policy which lies behind the extreme case which could be imagined. While
constitutional guaranty and the common law the United States Supreme Court could
principle, we have come finally to take our nonchalantly decree that testimony that an
stand with what we believe to be the reason of accused person put on a blouse and it fitted
the case. him is not a violation of the constitutional
provision, while the Supreme Court of
In contradistinction to the cases above- Nuevada could go so far as to require the
mentioned are others which seem to us more defendant to roll up his sleeve in order to
progressive in nature. Among these can be disclose tattoo marks, and while the Supreme
prominently mentioned decisions of the United Court of the Philippine Islands could permit
States Supreme Court, and the Supreme substances taken from the person of an
Court of these Islands. Thus, the always accused to be offered in evidence, none of
forward looking jurist, Mr. Justice Holmes, in these even approach in apparent harshness
the late case of Holt vs. United States ([1910], an order to make a woman, possibly innocent,
218 U. S., 245), in resolving an objection to disclose her body in all of its sanctity to the
based upon what he termed "an extravagant gaze of strangers. We can only consistently
extension of the Fifth Amendment," said: "The consent to the retention of a principle which
prohibition of compelling a man in a criminal would permit of such a result by adhering
court to be a witness against himself is a steadfastly to the proposition that the purpose
prohibition of the use of physical or moral of the constitutional provision was and is
compulsion to extort communications from merely to prohibit testimonial compulsion.
him, not an exclusion of his body as evidence
when it may be material." (See also, of same So much for the authorities. For the nonce we
general tenor, decision of Mr. Justice Day in would prefer to forget them entirely, and here
Adams vs. New York [1903], 192 U. S., 585.) in the Philippines, being in the agrreable state
The Supreme Court of the Philippine Islands, of breaking new ground, would rather desire
in two decisions, has seemed to limit the our decision to rest on a strong foundation of
protection to a prohibition against compulsory reason and justice than on a weak one blind
testimonial self-incrimination. The adherence to tradition and precedent.
constitutional limitation was said to be "simply Moreover, we believe that an unbiased
a prohibition against legal process to extract consideration of the history of the
from the defendant's own lips, against his will, constitutional provisions will disclose that our
an admission of his guilt." (U. S. vs. Tan Teng conclusion is in exact accord with the causes
[1912], 23 Phil., 145; U. S. vs. Ong Siu Hong which led to its adoption.
[1917], 36 Phil., 735, and the derivatory
principle announced in 16 Corpus Juris, 567, The maxim of the common law, Nemo tenetur
568, citing the United States Supreme Court seipsum accusare, was recognized in England
and the Supreme Court of the Philippine in early days, but not in the other legal systems
Islands as authority.) of the world, in a revolt against the
thumbscrew and the rack. A legal shield was

raised against odious inquisitorial methods of exposure to another's gaze. As Mr. Justice
interrogating an accused person by which to Gray in Union Pacific Railway Co. vs. Botsford
extort unwilling confessions with the ever ([1891], 141 U. S., 250) said, "To compel any
present temptation to commit the crime of one, and especially a woman, to lay bare the
perjury. The kernel of the privilege as body, or to submit to the touch of a stranger,
disclosed by the textwriters was testimonial without lawful authority, is an indignity, an
compulsion. As forcing a man to be a witness assault, and a trespass." Conceded, and yet,
against himself was deemed contrary to the as well suggested by the same court, even
fundamentals of republican government, the superior to the complete immunity of a person
principle was taken into the American to be let alone is the inherent which the public
Constitutions, and from the United States was has in the orderly administration of justice.
brought to the Philippine Islands, in exactly as Unfortunately, all too frequently the modesty of
wide — but no wider — a scope as it existed witnesses is shocked by forcing them to
in old English days. The provision should here answer, without any mental evasion,
be approached in no blindly worshipful spirit, questions which are put to them; and such a
but with a judicious and a judicial appreciation tendency to degrade the witness in public
of both its benefits and its abuses. (Read the estimation does not exempt him from the duty
scholarly articles of Prof. Wigmore in 5 of disclosure. Between a sacrifice of the
Harvard L. R. [1891], p. 71, and 15 Harvard L. ascertainment of truth to personal
R., 1902, p. 610 found in 4 Wigmore on considerations, between a disregard of the
Evidence, pp. 3069 et seq., and U. S. vs. public welfare for refined notions of delicacy,
Navarro [1904], Phil., 143.) law and justice cannot hesitate.

Perhaps the best way to test the correctness The protection of accused persons has been
of our position is to go back once more to carried to such an unwarranted extent that
elements and ponder on what is the prime criminal trials have sometimes seemed to be
purpose of a criminal trial. As we view it, the like a game of shuttlecocks, with the judge as
object of having criminal laws is to purgue the referee, the lawyers as players, the criminal as
community of persons who violate the laws to guest of honor, and the public as fascinated
the great prejudice of their fellow men. spectators. Against such a loose extension of
Criminal procedure, the rules of evidence, and constitutional guaranties we are here prepared
constitutional provisions, are then provided, to voice our protest.
not to protect the guilty but to protect the
innocent. No rule is intemended to be so rigid Fully conscious that we are resolving a most
as to embarrass the administration of justice in extreme case in a sense, which on first
its endeavor to ascertain the truth. No accused impression is a shock to one's sensibilities, we
person should be afraid of the use of any must nevertheless enforce the constitutional
method which will tend to establish the truth. provision in this jurisdiction in accord with the
For instance, under the facts before us, to use policy and reason thereof, undeterred by
torture to make the defendant admit her guilt merely sentimental influences. Once again we
might only result in including her to tell a lay down the rule that the constitutional
falsehood. But no evidence of physical facts guaranty, that no person shall be compelled in
can for any substantial reason be held to be any criminal case to be a witness against
detrimental to the accused except in so far as himself, is limited to a prohibition against
the truth is to be avoided in order to acquit a compulsory testimonial self-incrimination. The
guilty person. corollary to the proposition is that, an ocular
inspection of the body of the accused is
Obviously a stirring plea can be made showing permissible. The proviso is that torture of force
that under the due process of law cause of the shall be avoided. Whether facts fall within or
Constitution every person has a natural and without the rule with its corollary and proviso
inherent right to the possession and control of must, of course, be decided as cases arise.
his own body. It is extremely abhorrent to
one's sense of decency and propriety to have It is a reasonable presumption that in an
the decide that such inviolability of the person, examination by reputable and disinterested
particularly of a woman, can be invaded by physicians due care will be taken not to use

violence and not to embarass the patient any

more than is absolutely necessary. Indeed, no
objection to the physical examination being
made by the family doctor of the accused or by
doctor of the same sex can be seen.

Although the order of the trial judge, acceding

to the request of the assistant fiscal for an
examination of the person of the defendant by
physicians was phrased in absolute terms, it
should, nevertheless, be understood as
subject to the limitations herein mentioned,
and therefore legal. The writ of habeas corpus
prayed for is hereby denied. The costs shall be
taxed against the petitioner. So ordered.

G.R. No. 32025 September 23, 1929 Law and incorporated in General Orders, No.
vs. Therefore, the question raised is to be decided
FELIX SAMSON, Judge of the Second by examining whether the constitutional
Judicial District, and FRANCISCO JOSE, provision invoked by the petitioner prohibits
Provincial Fiscal of Isabela, respondents. compulsion to execute what is enjoined upon
him by the order against which these
Gregorio P. Formoso and Vicente Formoso proceedings were taken.
for petitioner.
The respondents in their own behalf. Said provision is found in paragraph 3, section
3 of the Jones Law which (in Spanish) reads:
ROMUALDEZ, J.: "Ni se le obligara a declarar en contra suya en
ningun proceso criminal" and has been
This is a petition for a writ of prohibition, incorporated in our Criminal Procedure
wherein the petitioner complains that the (General Orders, No. 58) in section 15 (No. 4
respondent judge ordered him to appear ) and section 56.
before the provincial fiscal to take dictation in
his own handwriting from the latter. As to the extent of the privilege, it should be
noted first of all, that the English text of the
The order was given upon petition of said fiscal Jones Law, which is the original one, reads as
for the purpose of comparing the petitioner's follows: "Nor shall be compelled in any
handwriting and determining whether or not it criminal case to be a witness against himself."
is he who wrote certain documents supposed
to be falsified. This text is not limited to declaracion but says
"to be a witness." Moreover, as we are
There is no question as to the facts alleged in concerned with a principle contained both in
the complaint filed in these proceedings; but the Federal constitution and in the
the respondents contend that the petitioner is constitutions of several states of the United
not entitled to the remedy applied for, States, but expressed differently, we should
inasmuch as the order prayed for by the take it that these various phrasings have a
provincial fiscal and later granted by the court common conception.
below, and again which the instant action was
brought, is based on the provisions of section In the interpretation of the principle, nothing
1687 of the Administrative Code and on the turns upon the variations of wording in the
doctrine laid down in the cases of People vs. constitutional clauses; this much is conceded
Badilla (48 Phil., 718); United States vs. Tan (ante, par. 2252). It is therefore immaterial that
Teng (23 Phil., 145); United States vs. Ong Siu the witness is protected by one constitution
Hong (36 Phil., 735), cited by counsel for the from 'testifying', or by another from 'furnishing
respondents, and in the case of Villaflor vs. evidence', or by another from 'giving
Summers (41 Phil., 62) cited by the judge in evidence,' or by still another from 'being a
the order in question. witness.' These various phrasings have a
common conception, in respect to the form of
Of course, the fiscal under section 1687 of the the protected disclosure. What is that
Administrative Code, and the proper judge, conception? (4 Wigmore on Evidence, p. 863,
upon motion of the fiscal, may compel 1923 ed.)
witnesses to be present at the investigation of
any crime or misdemeanor. But this power As to its scope, this privilege is not limited
must be exercised without prejudice to the precisely to testimony, but extends to all giving
constitutional rights of persons cited to appear. or furnishing of evidence.

And the petitioner, in refusing to perform what The rights intended to be protected by the
the fiscal demanded, seeks refuge in the constitutional provision that no man accused
constitutional provision contained in the Jones of crime shall be compelled to be a witness
against himself is so sacred, and the pressure

toward their relaxation so great when the Sprouse vs. Com., the defendant performed
suspicion of guilt is strong and the evidence the act voluntarily.
obscure, that is the duty of courts liberally to
construe the prohibition in favor of personal We have also come upon a case wherein the
rights, and to refuse to permit any steps handwriting or the form of writing of the
tending toward their invasion. Hence, there is defendant was obtained before the criminal
the well-established doctrine that the action was instituted against him. We refer to
constitutional inhibition is directed not merely the case of People vs. Molineux (61
to giving of oral testimony, but embraces as Northeastern Reporter, 286).
well the furnishing of evidence by other means
than by word of mouth, the divulging, in short, Neither may it be applied to the instant case,
of any fact which the accused has a right to because there, as in the aforesaid case of
hold secret. (28 R. C. L., paragraph 20, page Sprouse vs. Com., the defendant voluntarily
434 and notes.) (Emphasis ours.) offered to write, to furnish a specimen of his
The question, then, is reduced to a
determination of whether the writing from the We cite this case particularly because the
fiscal's dictation by the petitioner for the court there gives prominence to the
purpose of comparing the latter's handwriting defendant's right to decline to write, and to the
and determining whether he wrote certain fact that he voluntarily wrote. The following
documents supposed to be falsified, appears in the body of said decision referred
constitutes evidence against himself within the to (page 307 of the volume cited):
scope and meaning of the constitutional
provision under examination. The defendant had the legal right to refuse to
write for Kinsley. He preferred to accede to the
Whenever the defendant, at the trial of his latter's request, and we can discover no
case, testifying in his own behalf, denies that ground upon which the writings thus produced
a certain writing or signature is in his own can be excluded from the case. (Emphasis
hand, he may on cross-examination be ours.)
compelled to write in open court in order that
the jury maybe able to compare his For the reason it was held in the case of First
handwriting with the one in question. National Bank vs. Robert (41 Mich., 709; 3 N.
W., 199), that the defendant could not be
It was so held in the case of Bradford vs. compelled to write his name, the doctrine
People (43 Pacific Reporter, 1013) inasmuch being stated as follows:
as the defendant, in offering himself as witness
in his own behalf, waived his personal The defendant being sworn in his own behalf
privileges. denied the endorsement.

Of like character is the case of Sprouse vs. He was then cross-examined the question in
Com. (81 Va., 374,378), where the judge regard to his having signed papers not in the
asked the defendant to write his name during case, and was asked in particular whether he
the hearing, and the latter did so voluntarily. would not produce signatures made prior to
the note in suit, and whether he would not write
But the cases so resolved cannot be his name there in the court. The judge
compared to the one now before us. We are excluded all these inquiries, on objection, and
not concerned here with the defendant, for it it is of these rulings that complaint is made.
does not appear that any information was filed The object of the questions was to bring into
against the petitioner for the supposed the case extrinsic signatures, for the purpose
falsification, and still less as it a question of the of comparison by the jury, and we think that
defendant on trial testifying and under cross- the judge was correct in ruling against it.
examination. This is only an investigation prior
to the information and with a view to filing it. It is true that the eminent Professor Wigmore,
And let it further be noted that in the case of in his work cited (volume 4, page 878), says:

Measuring or photographing the party is not

within the privilege. Nor it is the removal or We say that, for the purposes of the
replacement of his garments or shoes. Nor is constitutional privilege, there is a similarity
the requirement that the party move his body between one who is compelled to produce a
to enable the foregoing things to be done. document, and one who is compelled to
Requiring him to make specimens of furnish a specimen of his handwriting, for in
handwriting is no more than requiring him to both cases, the witness is required to furnish
move his body . . ." but he cites no case in evidence against himself.
support of his last assertion on specimens of
handwriting. We note that in the same And we say that the present case is more
paragraph 2265, where said authors treats of serious than that of compelling the production
"Bodily Exhibition." and under preposition "1. of documents or chattels, because here the
A great variety of concrete illustrations have witness is compelled to write and create, by
been ruled upon," he cites many cases, means of the act of writing, evidence which
among them that of People vs. Molineux (61 does not exist, and which may identify him as
N. E., 286) which, as we have seen, has no the falsifier. And for this reason the same
application to the case at bar because there eminent author, Professor Wigmore,
the defendant voluntary gave specimens of his explaining the matter of the production of
handwriting, while here the petitioner refuses documents and chattels, in the passage cited,
to do so and has even instituted these adds:
prohibition proceedings that he may not be
compelled to do so. For though the disclosure thus sought be not
oral in form, and though the documents or
Furthermore, in the case before us, writing is chattels be already in existence and not
something more than moving the body, or the desired to be first written and created by
hands, or the fingers; writing is not a purely testimonial act or utterance of the person in
mechanical act, because it requires the response to the process, still no line can be
application of intelligence and attention; and in drawn short of any process which treats him
the case at bar writing means that the as a witness; because in virtue it would be at
petitioner herein is to furnish a means to any time liable to make oath to the identity or
determine whether or not he is the falsifier, as authenticity or origin of the articles produced.
the petition of the respondent fiscal clearly (Ibid., pp. 864-865.) (Emphasis ours.)
states. Except that it is more serious, we
believe the present case is similar to that of It cannot be contended in the present case that
producing documents or chattels in one's if permission to obtain a specimen of the
possession. And as to such production of petitioner's handwriting is not granted, the
documents or chattels. which to our mind is not crime would go unpunished. Considering the
so serious as the case now before us, the circumstance that the petitioner is a municipal
same eminent Professor Wigmore, in his work treasurer, according to Exhibit A, it should not
cited, says (volume 4, page 864): be a difficult matter for the fiscal to obtained
genuine specimens of his handwriting. But
. . . 2264. Production or Inspection of even supposing it is impossible to obtain
Documents and Chattels. — 1. It follows that specimen or specimens without resorting to
the production of documents or chattels by a the means complained herein, that is no
person (whether ordinary witness or party- reason for trampling upon a personal right
witness) in response to a subpoena, or to a guaranteed by the constitution. It might be true
motion to order production, or to other form of that in some cases criminals may succeed in
process treating him as a witness ( i.e. as a evading the hand of justice, but such cases are
person appearing before a tribunal to furnish accidental and do not constitute the raison d'
testimony on his moral responsibility for etre of the privilege. This constitutional
truthtelling), may be refused under the privilege exists for the protection of innocent
protection of the privilege; and this is persons.
universally conceded. (And he cites the case
of People vs. Gardner, 144 N. Y., 119; 38 N.E., With respect to the judgments rendered by this
1003) court and cited on behalf of the respondents, it

should be remembered that in the case of morphine he had there. It was not compelling
People vs. Badilla (48 Phil., 718), it does not him to testify or to be a witness or to furnish,
appear that the defendants and other much less make, prepare, or create through a
witnesses were questioned by the fiscal testimonial act, evidence for his own
against their will, and if they did not refuse to condemnation.
answer, they must be understood to have
waived their constitutional privilege, as they Wherefore, we find the present action well
could certainly do. taken, and it is ordered that the respondents
and those under their orders desist and
The privilege not to give self-incriminating abstain absolutely and forever from
evidence, while absolute when claimed, compelling the petitioner to take down
maybe waived by any one entitled to invoke it. dictation in his handwriting for the purpose of
(28 R. C. L., paragraph 29, page 442, and submitting the latter for comparison.
cases noted.)
Without express pronouncement as to costs.
The same holds good in the case of United So ordered.
States vs. Tan Teng (23 Phil., 145), were the
defendant did not oppose the extraction from
his body of the substance later used as
evidence against him.

In the case of Villaflor vs. Summers (41 Phil.,

62), it was plainly stated that the court
preferred to rest its decision on the reason of
the case rather than on blind adherence to
tradition. The said reason of the case there
consisted in that it was the case of the
examination of the body by physicians, which
could be and doubtless was interpreted by this
court, as being no compulsion of the petitioner
therein to furnish evidence by means of
testimonial act. In reality she was not
compelled to execute any positive act, much
less a testimonial act; she was only enjoined
from something preventing the examination;
all of which is very different from what is
required of the petitioner of the present case,
where it is sought to compel him to perform a
positive, testimonial act, to write and give a
specimen of his handwriting for the purpose of
comparison. Besides, in the case of Villamor
vs. Summers, it was sought to exhibit
something already in existence, while in the
case at bar, the question deals with something
not yet in existence, and it is precisely sought
to compel the petitioner to make, prepare, or
produce by this means, evidence not yet in
existence; in short, to create this evidence
which may seriously incriminate him.

Similar considerations suggest themselves to

us with regard to the case of United States vs.
Ong Siu Hong (36 Phil., 735), wherein the
defendant was not compelled to perform any
testimonial act, but to take out of his mouth the